Study On Legal Regulation Of Searching And Seizing Electronic Data

Entering into the era of electronic data,the electronic storage medium gradually plays an important role in people's work and life.It also has a profound impact on criminal offenses,for example,new cybercrimes and computer crimes are rampant,traditional criminal offenses are increasingly showing the characteristics of the electronization.Therefore,the importance of electronic data collection and extraction in criminal justice has become increasingly prominent.As the most widely used and infringing method of collecting and extracting electronic data,how to impose legal regulation to searching and seizing electronic data and realize the balance between safeguarding the legitimate rights and interests of citizens and effective investigation are worth further investigation.This article is divided into four parts.The first part combs the current situation of legislation and practice and puts forward the existing problems.In September 2016,the Supreme People's Court,the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the Provisions on Handling Certain Issues Concerning the Collection and Examination of Electronic Data in Criminal Cases.At this stage,there are mainly two problems in China's electronic data search and seizure system.First,the meaning of searching and seizing electronic data has not been precisely defined,the boundaries between the searching,seizing and other methods of electronic forensics are unclear.As a result,in practice,investigators evade mandatory investigation by conducting non-mandatory investigation.Second,legal procedures which match the characteristics of searching and seizing electronic data have not yet been established.The second part focuses on the Convention on Cybercrime,the latest legislation,judicial precedents and doctrines in the United States,as well as relevant legislation in Germany,France,Japan and Taiwan.The second part analyzes and references the concepts,characteristics and legal procedures of searching and seizing electronic data.The third part clarifies the meaning and the characteristics of searching and seizing electronic data.First of all,the legislation of our country should make it clear that electronic data is the object of search and seizure.The standard of judging whether the method of electronic forensics constitutes searching and seizing electronic data is whether the investigation has potential possibilities to infringe the citizens' important privacy rights.The object of searching and seizing electronic data includes either electronic data stored in theelectronic storage device or undisclosed electronic data stored in the cloud or other network systems.Legislation should clarify the relationship between the electronic data search and seizure,the inspection of the scene,the electronic data inspection and the electronic data remote inspection.Secondly,compared with traditional search and seizure,searching and seizing electronic data has several significant differences regardless of the method of search,the scope,procedures,time,place of search,degree of privacy infringement and so on,it is necessary for searching and seizing electronic data to establish regulatory and remedial procedures which consistent with their characteristics.The fourth part puts forward some suggestions on how to perfect the procedure of electronic data search and seizure in our country.First of all,we should follow the principle of judicial review,the principle of proportionality and the principle of effective investigation.Second,there is detailed discussions about making plans for searching and seizing electronic data,the application for search warrants,the approval of search warrants,the restrictions of searching and seizing electronic data,the execution of search warrants,the circumstances of searching without warrants,the disposal of seized storage medium and data,relief mechanism and other aspects.On the one hand,in order to prevent a general search,it is necessary to impose requisite restrictions on searching and seizing electronic data by perfecting the criminal judicial review system,the entire videotaping system,the evidence custody chain system and the right relief mechanism to safeguard the legitimate rights and interests of the relevant obligees.On the other hand,under the premise of guaranteeing the basic rights of citizens,effective search and seizure of electronic data shall be conducted through such measures as technical training,guidance on search methods,pre-planning,issuance of electronic search warrants,assistance from the relevant obligees and third parties.