| In the digital economy era,data has been established as a key production factor and a national basic strategic resource.How to protect data security effectively has become an important topic of Chinese current criminal law theoretical research and justice practice.Data crawling behavior,that is,the behavior of automatically acquiring network data using web crawling technology,is one of the technical means that may endanger data security.The behavior of data crawling was selected as the top ten criminal cases of the People’s Court in 2019 due to the country’s first criminal case of "reptiles",which has been focused on by theory and practice.On the one hand,data crawling has the risk of endangering data security and destroying computer systems.On the other hand,it is beneficial to the development of the data industry by promoting data circulation and reuse.In this regard,how to distinguish between the legit use of web crawler technology and illegal crimes so that the criminal law does not hinder the maximum use of data resources while protecting data security has become a theoretical and practical problem that needs to be solved urgently.Therefore,this article uses this as a perspective to study the criminal laws and regulations of data crawling behavior.The full text of the thesis has a total of 170,000 words,and is divided into the following five parts in addition to the "Introduction" :The first part,"Basic review of criminal laws and regulations on data crawling behavior",introduced the connotation of data and data crawling behavior,and sorted out the current legislative status and criminal justice status of data crawling behavior in China.Specifically,on the basis of dividing similar concepts such as data and information,electromagnetic records and summarizing the typical characteristics of data,it focuses on explaining the connotation and technical principles of data crawling behavior,that is,data crawling behavior is the use of web crawler programs to quickly retrieve and the behavior of obtaining network data.The process of searching for data on the Internet by this program is like a spider crawling along a spider web,so it is called a "web crawler",which is a computer program that essentially imitates humans’ accessing and downloading data behavior through a browser according to preset code rules.Improper use of web crawler technology to obtain data has risks such as infringing on data security and disrupting the operation of computer systems.In this regard,according to Chinese civil law,economic law,network security law and other laws and regulations,there are many relevant provisions that can be used to regulate data crawling behavior.Regarding data crawling behaviors subject to penalties,Chinese criminal law stipulates 10 illegal data acquisition crimes,as well as the crimes of destroying computer information systems and illegal intrusions into computer information systems.The criminal justice system has established an emphasis on the protection of personal information.And works,initially establish a pattern to protect the security of new types of data,while maintaining the security of computer information systems.The second part,"Issues Examination of Criminal Regulations of Data Crawling Behavior",focuses on the three major problems in current judicial practice that apply to criminal law data crawling.First,the positioning of data carrier security as a legal benefit of criminal law is incorrect.Specifically,the improper application of criminal law to protect data carriers expands the scope of the regulation of data crawling behavior,and the difficulty in distinguishing the types of data carriers also leads to the ambiguity of the conviction of the crime of data crawling and that of the other.It is applicable to illegally obtaining computer information and data.The crime of protecting the confidentiality of data carriers will also lead to the conclusion that unauthorized crawling of public information constitutes a crime,infringing on citizens’ freedom of accessing to information protected by the Constitution.Second,the logic of convicting and penalizing data crawling based on the authorization of the data platform and the scope of authorization is inappropriate.Judicial practice generally recognizes whether the data crawling behavior is “violating national regulations” based on the authorization of the data platform and the scope of authorization to determine the crime.The essence of this approach is to lower the illegal threshold of "crawlers" in accordance with the data platform’s willingness to control data,thereby lowering the threshold of criminalization of data crawling behavior,and confuses the responsibility for breach of contract,tort liability and criminal responsibility for data crawling behavior.And for the data crawling behavior that constitutes a crime,the fault of the data platform for not fulfilling the data security protection obligation is ignored in the sentencing,which leads to the incompatibility of the criminal responsibility of the data crawling behavior.Third,the concept of excessive application of criminal laws and regulations on data crawling is inappropriate.Excessive reliance on punishment of data crawling behavior with penal means is easy to convict all data crawling behaviors with significant and minor plots,making the criminal law system pre-positioned,and improper use of data is attributed to data crawling behavior,and even suppressed data Flow hinders the innovation and development of the data industry.The third part "theoretical premise of the criminal legal system for data crawling behavior" explains the theoretical foundation that the criminal legal system for data crawling behavior should follow,that is,the principle of protection of legal interests,the principle of equality of criminal law and the spirit of restraint in criminal law.First of all,the criminal regulation of data crawling behavior should follow the principle of legal interest protection.The main point of the principle of protection of legal interests is that acts that do not infringe the legal interests of criminal law cannot be regarded as crimes.Therefore,the principle of legal interest protection contains the confirmation of criminal legal interests,which can be used to reflect on whether a certain interest is worthy of criminal law protection.Accordingly,the criminal law does not protect all interests,and the legal interests of data security that are infringed by the act of data crawling should be associated with important interests worthy of protection by the criminal law,and a basis can be found in the constitution.Secondly,the criminal regulation of data crawling behavior should conform to the principle of equality in the criminal law.The principle of equality in the criminal law emphasizes the substantive and equal protection of the interests of multiple parties in the criminal law and equal punishment for violations of obligations under the criminal law,which can be used to test the rationality of the conclusions of criminal laws and regulations for data crawling.Specifically,based on the principle of equality in the criminal law,the conclusions of criminal laws and regulations for data crawling behavior should follow the rules of interest balance established by the pre-law,so as to realize the equal protection of the interests of data controllers and the public in the criminal law,and at the same time all endanger data security and Any violation of data security protection obligations requires corresponding responsibilities.Finally,the criminal regulation of data crawling behavior should uphold the spirit of modest and restraining criminal law.Adhere to the modest and restrained nature of the criminal legal system for data crawling,and conform to the network governance concept of multi-means combined with comprehensive governance,specifically the criminal legal system that requires data crawling behavior,and should comply with the data security concept of maintaining data security and promoting data development and utilization.While using penal measures to ensure data security,it does not hinder the innovative development of the data industry.The fourth part,"Resolving the Issues of Criminal Regulations on Data Crawling Behaviors",is the application path of criminal law to solve the problems of criminal regulations on data crawling.First,according to the principle of legal benefit protection,it is clear that the essence of data security legal benefit lies in the security of data information content.The crime of illegally obtaining data should be distinguished according to the information type of the data,and the information confidentiality should be regarded as illegally obtaining computer information system.The legal benefits of data crime limit the scope of this crime to regulate data crawling behavior.Secondly,to correct the conviction and sentencing logic of data crawling behavior,the form of illegality of data crawling behavior should be judged based on whether it violates the overall legal order,and data crawling behavior that is legally required by law cannot be regarded as illegal.On this basis,according to the serious infringement of data crawling on copyright,various information security,and computer information system security,the criminal law can be realized by fully considering the circumstances of the platform’s failure to fulfill its data security protection obligations in the sentencing.Equal application.Finally,the criminal laws and regulations on data crawling should uphold the spirit of modest and restraint of the criminal law.Specifically,the crawling behavior that deletes data in time under certain circumstances and the behavior that crawls other data only cause the loss of competitive interests can be convicted.In addition,the provisions on the use of computers to commit crimes are reasonably applied.For other behaviors that use the crawled data to perform does not constitute a crime,only when the behavior of crawling data is necessary for the criminal law,can the behavior of data crawling be recognized as crime.The fifth part,"Legislative Prospects of Criminal Regulations on Data Crawling Behavior",is a legislative proposal for the criminal law to reasonably guarantee data security,and it is also the fundamental path to solve the existing problems of the criminal legal system for data crawling,including reviews and comments on existing legislative proposals.Suggestions for the revision of the crime of illegally obtaining information system data.Specifically,Chinese criminal law should not learn from the data-centric legislative model to add or modify data crimes,because the data-centric legislative model is not compatible with Chinese criminal law system,and it adds regulations for the preparation and follow-up of illegal acquisition of data.The related charges are unreasonable,and it is not necessary to add new charges to establish the property protection of big data.The fundamental way to solve the current criminal laws and regulations of data crawling is not to add data crimes,but to revise the existing crimes of illegally obtaining computer information system data.In view of the existing problems of the crime of illegally obtaining computer information system data,the crime can be separated from the crime of illegally controlling computer information systems.At the same time,the object of the crime is clearly defined as data whose information content is confidential,and the behavior of this crime The requirement is clearly to obtain the control right of the data copy.The revised provisions on the crime of illegally obtaining computer information system data: "Violation of national regulations,obtaining control of data copies through copying,downloading,etc.,obtaining computer information system data whose information content is in a state of confidentiality,if the circumstances are serious,sentenced to less than three years fixedterm imprisonment or criminal detention and concurrently or solely with a fine;if the circumstances are particularly serious,they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and a fine."... |
PDF Full Text Request