Research On The Criminalization Of Endangering Data Production

Data is the product of information records.From the perspective of historical development,information records existed in human society for a long time before the emergence of computer information technology.In ancient times,there was a saying of tying ropes to record events and rule by tying ropes.In the middle ages,it became popular to record historical events and people’s activities with words,ink,paper and inkstone.In modern times,because of the invention of camera,tape recorder and video recorder,people realized to save the records of objective phenomena and human activities with images,sounds and videos.With the development of modern times,the innovation of computer information technology makes it possible to digitize the information of all things.It can be seen that computer information technology is only the driving force of the development and transformation process of information recording production.In modern data recording production relations,if data is the production object of recording activities,then computer information technology exists as a production tool.The existence of computer information technology has infinitely shortened the activity process of data acquisition,storage,processing and processing.At the same time,it has also infinitely expanded the scale of data processing activities.As big data has become a new driving force for social and economic development,data has become a key factor of production in the field of digital economy.When the positive desire of all parties for data value and the corresponding interference and destruction of data processing activities have gradually become a normal phenomenon,the timely response of criminal law is a timely response to the situation.As far as this research is concerned,the research on the criminalization of endangering data production is mainly divided into four chapters:The first chapter is an overview of the criminalization of endangering data production.The connotation,types and criminalization of this punishment are carried out in three parts.The first part is the connotation of endangering data production behavior.Firstly,according to the historical investigation of data records and the construction of EU data producer rights,this paper points out that the essence of data production is the digitization of objective information,which refers to the activities of relevant subjects to collect and record objective information things through automatic or non automatic machinery and equipment.The behavior of endangering data production refers to the behavior that the perpetrator interferes with and destroys the data industry to engage in relevant data collection,storage,analysis and decision-making activities in different ways,resulting in the data industry unable to normally carry out data production and operation business,and thus causing serious damage.The second part is the types of behaviors endangering data production.According to the different behavior modes(such as physics or technology)and hazard results(whether it leads to the inability of data operators to collect data or the sharp reduction in the quantity or quality of data collected by data operators in a certain period of time),this paper divides the hazard data production behavior into four types: physical destruction type,technical destruction type,diversion obstruction type and pollution obstruction type.Corresponding to many common illegal phenomena such as interference environment data collection,traffic hijacking,malicious batch registration of accounts and network bill brushing.The third part is the crime of endangering data production.Based on the investigation of the current situation and development trend of the criminalization of endangering data production,this paper abstracts the multiple resistance existing in the criminalization of endangering data production,which mainly has three aspects: first,it is considered that the existing criminal legal norms are sufficient to regulate the new phenomenon of network illegal crime without adding new charges;Secondly,the existing data of criminal law is not enough to regulate the universal harm to society,and there is no need to adjust the existing data of criminal law;Third,it even believes that some acts endangering data production do not have criminal illegality.They belong to normal life acts,and there is no need to use criminal law to regulate them.This paper holds that the criminalization of endangering data production first needs to solve the legitimacy and necessity of criminalization,and on this basis,the design of indictment is discussed.The second chapter is the legitimacy of the criminalization of endangering data production.Firstly,the criminalization of endangering data production has positive values,such as promoting the high-quality development of digital economy,ensuring the realization of digital labor autonomy,timely curbing the increasingly rampant black chain activities of data fraud network,affirming the reasoning of judicial judgment,highlighting the intention to ensure the normal development of data business activities and so on.Secondly,the behavior endangering data production has obvious illegal characteristics.In reality,all kinds of behaviors show a frequent trend.The behavior often leads to serious damage results,and some behaviors are related to serious criminal activities.Finally,the behavior endangering data production also has serious infringement of legal interests.In terms of infringement of legal interests,in the past,cases of damaging data collection activities around the identification of computer information system security standards have always been a mainstream practice in criminal law theory and judicial practice.However,with the development of digital economy and the advent of the era of big data,data is gradually getting rid of the role of system tools and becoming a commodity object with independent value and tradability.The target object of destroying data collection activities increasingly points to the value data itself.The change of thinking from protecting the legal interests of computer system security to protecting the legal interests of dynamic data security is undoubtedly a trend in line with social development.Dynamic data security is a security risk in the complete links of data collection,storage,analysis,decision-making and application.In relevant practical applications,it is not only related to the performance and Realization of government functions,but also related to the smooth development of normal business of enterprises.Therefore,this paper believes that the behavior endangering data production should be included in the scope of criminal law.The third chapter is the necessity of criminalizing the behavior endangering data production.This chapter will demonstrate that the existing criminal law can not fully and effectively regulate the behavior of endangering data production,so as to clarify the necessity of criminalizing the behavior of endangering data production.The existing view is that the behavior endangering data production can be regulated by expanding the interpretation of the charges stipulated in the existing criminal law.For example,the crime of destroying computer information system can be applied to physical interference,environmental damage,data collection and domain name traffic hijacking;For network crimes such as link traffic hijacking,malicious batch registration of accounts and positive and negative network bill brushing,the crimes of illegally obtaining computer information system data,illegally controlling computer information system,illegal business operation,false advertising and damaging commercial reputation and commodity reputation can be applied respectively;Even some of these acts can be considered to apply the provision of aiding crime because they are often associated with other crimes.However,most behavior types have problems and difficulties in interpretation when applying these crimes: for example,if physical interference and environmental data collection are identified as the crime of destroying computer information system,it can not explain how the crime of destroying computer information system can be established without invading computer information system;It is also difficult to explain how the sales volume data can become the problem of advertising itself without being clearly regarded as the content of advertising;Similar situations exist in the application of other crimes.Therefore,based on computer crime and combined with the application of other traditional charges,it is difficult to fully and effectively regulate all types of acts endangering data production.This paper holds that among the existing types of behavior,some behaviors endangering data production can still be interpreted into the existing criminal law.For example,the physical destruction type can be applied to the crime of destroying production and operation,and the technical destruction type can be applied to the crime of destroying computer information system.However,some behaviors endangering data production,such as diversion obstruction and pollution obstruction,are difficult to be effectively regulated according to the existing criminal law.Therefore,it is necessary to criminalize legislation.The fourth chapter is the criminal design of endangering data production.The criminalization of endangering data production behavior should reasonably delimit the criminal circle.We should not only delimit which types of crimes can be established from the front,but also clearly exclude the situation that there is no crime.This paper tries to start from the subjective and objective elements of the criminalization of endangering data production behavior.The criminalization of endangering data production objectively shows that the perpetrator interferes with and destroys the data industry’s relevant data collection,storage,analysis and decision-making activities in different ways,resulting in the data industry’s inability to normally carry out data production and operation business,resulting in serious damage consequences;Subjectively,the perpetrator is required to have general intention to the harmful behavior and its damage results.In contrast,single behaviors endangering data production,behaviors endangering data production to protect data security,behaviors endangering data production based on privacy protection and behaviors endangering data production due to survival crisis should be excluded from the criminal circle.In view of the fact that many types of behaviors endangering data production together constitute an obstruction to the normal data production and business activities of data operators,the criminal law should add the crime of hindering business to regulate.