The Legal Adjustment Of Compelling Companies To Assist In Unlocking And Searching Mobile Phones

With the improvement of citizens' awareness of privacy protection,it's a common situation that more and more users are willing to set password for their mobile phone.Facing the development of mobile encryption technology,because of limited unlock investigation,there exist a contradiction between legislative blank and practical demand.So it is necessary to build a lawful and limited cooperation system with technical companies when searching and unlocking mobile phones.Only in this way can public security organs improve their administrative ability and cope with the opportunities and challenges brought by the development of science and technology.This paper is divided into three parts besides the preface,totaling 28,000 words:The first part is the evaluation and analysis of extraterritorial cases.In the United States,a court filing a petition asking apple to help unlock the phone of a suspect's cell phone has occurred,and the court has made a different ruling on similar cases.The problem whether government has right to compel company to write unlock code for mobile phone gets unsolved.Comparing two typical cases base on the complete judicial review system in the United States investigation stage,the differences between these cases derive from the lag of legislation and the disunity of justice.The specific differences lie in the alleged crimes and the different technology costs of Apple.Interests balancing is an important factor for judge.Behind the dispute between the FBI and Apple is the state's growing willingness when protecting individual rights and fighting crime.The second part is about Chinese current situation and reflection of the compulsory enterprise assistance in unlocking and searching mobile phones.Legislative vacancy and practical demand result in forcing enterprise assistance in an awkward situation.On the one hand,because of the legislative lag,the basis,conditions,procedures and other aspects of compulsory enterprise assistance are not specified.The limitation of the scope of forensic personnel cannot meet the needs of the reality investigation,and the supervision of the procedure focuses on self-supervision and lacks external supervision.Meanwhile,booming encryption technology and limited unlock technology create a great need for enterprise technicians to assist in the extraction of electronic data.The tacit cooperation of technology companies is not based on the law,and it has psychological compulsion to fear the power of the public security organs.Therefore,the practice of forcing the enterprises to assist behavior is out of the legal system.In the third part,it is necessary to establish the company's assistance duty when unlocking the mobile phone.First of all,the essence of privacy is freedom of private life,which is one of the specific contents of "freedom".The creation of a social contract requires that the citizen relinquish the free part,form the law,and be bound by it.Based on the reality demand and dynamic tradeoff,the right of privacy should be given to public power under certain conditions.Second,the right of commercial interest concessions to national security,the technology company understanding of "privacy" should return to constitutional rights and the judicial process.Based on national security grounds for maintenance,through due process,the technology company should help unlock specific mobile phones to assist the investigation.Then,it is necessary to adjust the relationship between companies and users,the value goal and orientation of the technology company should be consistent with the society.The fourth part discusses the system construction of compulsory enterprise assistance.Since there is a certain connection and difference between the compulsory assistance and the technical investigation,the condition is set up to be limited by the technology investigation measures.Firstly,the start-up program needs to meet certain conditions such as a crime of compromising national security,a crime of terrorist activities,an organized crime of a gangland nature,and a significant drug crime.The evidence condition is reasonable doubt to the investigation authority,and the technology enterprise should have certain qualifications.Secondly,justification and due process is the key of this procedure which is closely related to the judicial review process: The application shall be made by the investigation organ,then the procuratorial organ undertakes the examination and issue a writ which should Identify the scope of corporate assistance.The assistance procedure demands external supervision such as the supervision of the criminal suspect,the defender,the on-site supervision of the witness,etc.In addition,it's necessary to give companies the right to apply for relief from the court,competing with procedural anomie and ensuring their legitimate rights.