Studies On The Investigation And Evidence Collection Of QQ Data

As the most widely used instant communication tool, QQ has become an important source of evidence information. In sharp contrast to the gradual normalization of QQ data investigation and evidence collection in criminal proceedings, the corresponding system supply in China’s legal system in the criminal procedure is in serious shortage. The Criminal Procedure Law only confirmed the electronic data as independent legal evidence, but there is no systematical or feasible legal provision on investigation and evidence collection in the electronic data, resulting in the large quantity of nonstandard or even illegal QQ investigation and evidence collection in the judicial practice. This paper endeavors to make in-depth analysis of inherent law of QQ data from the legal and technical dimension, draw on the useful experiences of foreign electronic data investigation and construct the QQ data investigation and evidence collection suitable to our criminal justice practice.Apart from the introduction and conclusion, this paper consists of four parts, 32000 words in total.Part One analyzes the concept and characteristics of non QQ data. QQ data is the various electromagnetic medium on the related the facts of case information which is recorded by the instant communication tool. Its proof information is contained in the data, including “communication data”, and “communication content data”. Evidence characteristics of QQ data lie in the following four aspects: firstly, the force of the QQ data depends on the environment of computer software and hardware system, QQ data forensics is highly technological dependent. Secondly, the QQ data belongs to the real evidence, which determine s that the constructed procedural sanction mechanism is only the exclusionary rule of illegal real evidence. Then the separability of QQ data evidence carrier and evidence information, to a certain extent, challenges the traditional principle that the copies(goods) of the real evidence are weaker than the original(matter). Finally, the QQ data are closely related to the citizens’ constitutional rights, and serious illegal evidence collection can result in the loss of ability of evidence of QQ data.Part Two reviews the extraterritorial system design in the QQ data investigation and evidence collection. Although there is no special system for QQ data investigation and evidence collection in the foreign countries in the legislation, the system for electronic data investigation and evidence collection has been relatively complete. The seizure and monitoring are the core measures for electronic data evidence collection in the two legal systems of. The launching of seizure takes the writ doctrine as the principle, with the three undocumented seizure circumstances in case of emergency, the collateral seized and the agreement of the detained, while the civil law also established the special launching model of post confirmation of seizure. In the application of the conditions, the Anglo American law defines seizure reasons and the standard of proof; while the civil law is relatively loose, judging only by experience or doubt. In the way of implementation, it is reflected in the direct extraction type, the type of submission upon command and search type. In the relief procedure, the restitution of property, damages, the exclusionary rule of illegal evidence are mainly included. For the launching of monitoring, two legal systems strictly follow the writ doctrine, and also request the post confirmation of the judges in case of emergency monitoring. In the application of the conditions, despite the difference in value orientation and condition setting, the investigation principles of necessity, proportion and correlation are strictly followed. In the way of execution, various countries define that monitoring must be synchronized with communication, but view the specific technical means as state secret, undisclosed. As for the right relief, various countries establish a full range of security system of information privacy, right to know, the right to dissent, civil compensation and the exclusionary rule of illegal evidence.Part Three analyzes the status quo and causes of the system for China’s QQ data investigation and evidence collection. The current problems include: first is the lack of systematic legal basis and there are few and fuzzy laws on evidence collection of electronic, all of which are of the principle provisions. QQ data investigation and evidence collection, the same as other electronic data investigation and evidence collection, face the lawless situation in the fact. Secondly, the overall level is relatively low. The methods of extraction data by the investigation organs are disorderly, and not unified, and data extracted is not complete, affecting the cognizance of QQ data in the court. Finally, there is no uniform technical standard to follow. The lack of professionals and standardized operation rules results in the weak effectiveness of proof of many QQ data, and the difficult judicial adoption. The reasons for the above problems mainly lie in four aspects: one is the legislative idea of criminal procedure weigh “person” over “material”. Measures for “material” including search and seizure are not included in the “coercive measures”, leading to the incompleteness of the investigation and evidence collection system for “material”. Two is the principle of statutory procedures is not thoroughly implemented. There is no law to follow in the launching conditions, the way of execution and relief procedures for the QQ data investigation and evidence collection. Three is the lack of the judicial review system for force investigation behavior. Investigation and evidence collection follows the model of self-review, self-approval and self-investigation, without external supervision and restriction. Four is the exclusionary rule of illegal real evidence needs to be improved. The not clear and specific law makes it difficult to launch or exclude the exclusionary rule of illegal real evidence and it is difficult to effectively suppress the illegal QQ data investigation and evidence collection.Part Four proposes the assumption to improve QQ data investigation and evidence collection system in our country. The two measures for QQ data evidence collection of seizure(static evidence measures), network monitoring(dynamic forensics evidence measures) is constructed according to whether the data is in the “network transmission state”. It is required to improve the seizure of QQ data: the implementation of seizure by the public security organs is determined by the procuratorial organs, the implementation of seizure by the procuratorial organs is decided by the judicial organ, and take the own decision of seizure in case of the emergency, collateral seizure and the agreement of the detained by investigation authorities as a supplement; with the current reality, it is required to establish the loose application conditions for investigation authorities and to establish seizure exemption system for QQ data related to the state secret; it is required to take the data extraction as the essence, establish “nondestructive principle, to develop technical operation procendures for mandatory direct extraction, extraction of search type, submission upon command, improve the procedures for criminal compensation, introduce civil procedures, and improve the exclusionary rule of illegal evidence to prevent negative effect from the seizure of QQ data. It is required to improve the network monitoring: to establish a strict judicial writ with reference to allocation mode of seizure decision right; to fully implement the principles of proportion, necessity and relevance in comparison with the Anglo American law system or the German standard to limit the application of network monitoring; it is required to entitle the right to know and the right to sue and on the basis of this, introduce civil compensation and improve the criminal compensation and the exclusionary rule of illegal evidence.