| Big data investigation is the product of the confrontation between the criminal investigation and crime under the background of big data technology.On the one hand,in the "two-layer society",crime has broken through the limitation of real physical field,and presents new occurrence mechanism and change law in the interaction between material space and data space,which constitutes a systematic challenge to the traditional criminal investigation;on the other hand,the emerging technologies such as big data deeply influence the criminal investigation The application of big data promotes the emergence of big data investigation,which in turn reestablishes the criminal investigation' advantage over crime.At the ontological level,big data investigation is not only a new investigation technology or measure,but also a new investigation mode composed of new investigation ideas,new investigation thinking and new investigation ways,and is a new development of the crime investigation.Human activities depend on the guidance of rules.When the existing rules can not cover new activities or adapt to the new changes of the situation,it is necessary to promote the innovation of the rules.As a new thing,big data investigation has not jumped out of the existing legal framework,but has broken through the adjustment scope of the traditional criminal legislation.At present,the legal rules related to big data investigation are scattered,chaotic and even conflicting,which can not provide legal basis for it,and it is difficult to guide the standardized and legal operation of big data investigation,which leads to the disorder of big data investigation.What is particularly worrying is that big data investigation has further strengthened the secrecy,opacity and invasiveness of the criminal investigation process,causing a more profound right crisis.To solve this crisis,it is necessary to realize the deep coupling of legal authorization,legal regulation and technical logic through systematic law construction.On the one hand,it provides legal basis for big data investigation to ensure its efficient operation;on the other hand,it regulates the technology in investigation arbitrarily to guide big data investigation from disorder to order,and rebalance the relationship between human rights protection and reality discovery.Big data investigation is the combination of investigation and big data.Both the concept of big data at the application level and the big data concept at the philosophical level are the basic fulcrums for constructing the theory of big data investigation.There are four basic types of big data concepts—feature definitions,technical requirements definitions,value definitions,and social impact definitions,all of which are reasonable.In general,there are three main controversial issues in the concept of big data:delimitation of the concept boundary,identification of features,and whether to include big data applications,which are the general knowledge support for defining the concept of big data in this article.In order to prevent the research tendency of "big data" in investigation,the special characteristics of big data in investigation should be considered: the initiative of data collection,the dependence of big data on small data and the big data processing of small data.These three aspects are To define the scope of application of big data for this article,that is,to define big data from the perspective of investigation.Compared with the concept of big data,the concept of big data has a more substantial influence on the theoretical construction of big data investigation.This article reviews representative big data views such as "three major changes in thinking","prediction is the core of big data," and "big data doctrine",and criticizes the research tendency of applying big data concepts to big data investigations mechanically.Based on the analysis of the concept of big data and the philosophy of big data,this article analyzes the key issues involved in the definition of the concept of big data investigation,such as the rationality of big data investigation terms,big data investigation and data monitoring,data prediction Whether the crime that has not been committed is the object of big data investigation.On this basis,the definition of big data investigation was re-adjusted and compared with related concepts.Finally,it summarizes the basic characteristics of big data investigation and defines its legal nature.The development of big data investigations has a profound theoretical foundation and practical needs.The principle of information transfer and the same identification principle are the theoretical foundations of big data investigations,as well as the objective needs of the development of criminal situations,as well as specific crime governance concepts under the overall national security perspective.The inevitable result.The rule of law in big data investigation contains three factors: technical motivation,system motivation,and behavior motivation.The technical motivation behind the rule of law in big data investigation is that big data has subversively changed the process of investigation.In terms of time,the investigation response has been accelerated,and the time for criminal intervention has been advanced.In space,the tentacles of investigative power extend from physical space to data space.On the main body,social entities assist investigative agencies in carrying out big data investigations and will be normalized.Participation methods mainly include providing data resources and data technical support.In terms of means,data prerequisites are the prerequisite,and historical and real-time data based on monitoring or management is an important technical prerequisite for the operation of big data investigation measures;"black box" algorithms have become an important driver of investigation decisions or replace manual automatic decisions.In terms of objects,more tangible or intangible physical media carrying data have become targets of investigation.The institutional motivation for the rule of law in big data investigation is that it is difficult for traditional investigation laws and regulations to adjust big data investigation.Traditional investigation legal norms are mainly adjusted by entity investigation rather than data investigation;traditional investigation legal norms are adjusted by investigation in real space rather than data space;traditional investigation legal norms are adjusted by human behavior or investigation measures composed of a single technology The target is not the big data investigation composed of data flow and multiple technologies.In a nutshell,the traditional framework of the current law is not suitable for the adjustment of big data investigations,and legislative changes are needed.In addition,traditional investigation management systems cannot guarantee the efficient operation of big data investigations,and adjustments are also needed.In addition,the anomie of big data investigation is the driving force behind the rule of law in big data investigation.First,the large data investigation anomie caused by the investigator's main factors,such as illegal purpose,illegal procedures,out of proportion,etc.;second,the big data anomie caused by the means of big data algorithms,such as data errors and algorithm errors;third,The consequences and harms of the anomie of big data investigations,such as data rights algorithms and data errors leading to erroneous arrests,imbalances in the power of the investigating and defending parties,and feedback loops of discrimination and prejudice.These practical factors are the real motivation for the rule of law in big data investigations.According to the legal principle of investigation,the operation of big data investigation should have a legal basis.This article examines the legal authorization models of the representative legislation of the two major legal systems,and analyzes the specific clauses.European legislation mainly focuses on data flow authorization,which gives investigative agencies the power to collect,retain,and use data;supplemented by legal authorization for specific data analysis techniques,such as data comparison and data acquisition.The United States focuses on decentralized legislation,and the legal authorization of investigative agencies is also relatively scattered,mainly based on data monitoring authorization.Based on the experience of the two major legal systems,we proceeded from the current legislation in our country to analyze the possible paths of authorization.It is recommended to adopt an authorization method combining data process authorization and specific data technology authorization,revise the Criminal Procedure Law,the Police Law,the Personal Information Protection Law(Draft)and other laws,and establish and improve the legal authorization system for big data investigations.In addition,a management system compatible with big data investigations should also be established.Specifically,in terms of the investigation organization system,it is necessary to determine a reasonable management level and management range based on the operational logic of big data;in terms of the investigation process,it is necessary to shift from a "hypothesis + action" model to a "data + action" model.After the investigation turned to calculation,the algorithm dispelled the subjective system,space,time,and language conditions that carried due process.Especially in the investigation stage,the principle of equal armed forces of investigation was emptied,and the balance of power again tended to investigative agencies.In view of the irreplaceability of due process to investigative control power,this article focuses on the analysis of data errors and algorithm flaws in big data investigations,law enforcement bias and discrimination caused by data and algorithms,and the overhead of data and algorithms to traditional procedural rights.,Propose a plan for the reconstruction of the due process of investigation,which specifically includes strengthening the data responsibility of the investigative agency,increasing transparency,and reforming the examination and approval system to balance the power relationship between the suspect and the investigating agency.At the technical level,big data investigation is manifested in data collection,data storage,data analysis,data use,etc.,covering the entire life cycle of big data.Starting from the data logic and taking the data process as the regulatory approach is important for the control of big data investigation.aspect.The data protection principle is a control method centered on the data process,which specifically includes the principle of fairness and legality,the principle of purpose restriction,the principle of data quality,the principle of data minimization,and the principle of data security.Considering the difference between data protection in investigations and general data protection,according to the scenario-oriented concept,this article specifically designs the specific application of data protection principles in big data investigations.The data rights system is based on the guiding concept of rights restricting power,and checks and balances the investigative power by granting criminal suspects data rights.This article analyzes the specific content of personal information rights on the premise of not prejudice to the smooth progress of investigations within the framework of personal information rights stipulated in the draft personal information protection law.Due to the different creation logic of information rights and investigation procedures,integrating them into investigation procedures is a prerequisite for exerting the role of checks and balances,and is also oriented to applicable scenarios.This article proposes case-by-case review as an institutional arrangement for linking data rights and investigation procedures.In order to prevent the investigative agency from abusing its review discretion,four review standards,including interest measurement standards,classified review standards,dynamic review standards,and remedy standards,are proposed.In individual cases,the investigative agency should follow the above standards to derogate and restrict personal information rights.Perform due diligence.Finally,to improve the internal control mechanism of big data investigation,this paper proposes to establish a data management system that combines a risk-oriented pre-control mechanism and a responsibility-oriented post-control mechanism. |
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