Research On Online Extraction Of Electronic Data In Criminal Investigation

Electronic data whose original storage medium is located overseas or on a remote computer information system can be extracted online through the network.The online extraction of electronic data refers to the fact that investigators,when unable to control the original carrier,remotely access the target electronic data through the network information terminal,collect evidence by video recording,taking pictures,and intercepting computer screen content.The applicable conditions for specific measures for online electronic data extraction are ambiguous,and the start-up and approval procedures are unclear.The intrusive nature of this investigation method poses a huge threat to personal privacy and network information security.It will bring about the abuse of public power backed by national coercive force,and pose a great threat to the legitimate rights and interests of citizens.The online extraction of electronic data includes online extraction of public data and network remote surveys.Network remote surveys includes general network remote surveys and technical investigations.Except for extracting publicly released data,other online extraction behaviors are compulsory investigations and require certain approval procedures.The online extraction of electronic data will bring risks to citizens' right to privacy,personal information and litigation.Almost all the information of people in the Internet era is stored in personal computers or mobile phones.The act of accessing remote computer information systems via online extraction methods to extract electronic data is likely to infringe on citizens' privacy and personal information rights.In addition,the online extraction of electronic data may also pose risks to citizens' litigation rights.Because of the electronic data extraction and analysis capabilities,the investigating agency,which has a dominant position in terms of human and material resources,will reach a more passive position,making the defendant in a weaker position.To standardize the collection,extraction,review and judgment of electronic data,including online electronic data extraction,the Supreme People's Court,the Supreme People's Procuratorate,and the Ministry of Public Security issued the Provisions on Several Issues concerning the Collection,Taking,Examination,and Judgment of Electronic Data in the Handling of Criminal Cases(Hereinafter referred to as the"Provisions"),the Public Security Authorities issued Rules of Obtainment of Electronic Data as Evidence in Handling Criminal Cases(Hereinafter referred to as the "Rules").The "Provisions" and "Rules" both make clear provisions for online electronic data extraction,which are conducive to regulating online electronic data extraction.However,there are still problems such as insufficiently clear rules,insufficiently rigorous regulations,and unclear legal boundaries.For example,the distinction between arbitrary and compulsory investigations is not clear,the data investigation between the preliminary investigation stage and the filing stage is not clear enough,the provisions on the subjects of evidence collection are vague,and the coordination with the Criminal Procedure Law is insufficient.Based on the study of American and European Union's electronic data rules,drawing on the relevant principles and rules of the Fourth Amendment and Case Law of the United States and the EU General Data Protection Regulation,the following suggestions are made:First,establish writ rules for online electronic data extraction;second,establish evidence display system for online electronic data extraction;third,classify personal information and provide stricter protection measures for sensitive data;fourth,Give the data subject the right to know,correct and erase.When constructing the online electronic data extraction system,we must follow the principles of due process,proportionality,informed consent,and purpose limitation.The subject of evidence collection should not only be an investigator with investigative authority,but also possess the professional knowledge and technical qualifications required to extract electronic data online.While the people's courts,people's procuratorates and supervisory organs are performing their supervisory duties,the defense's ability to obtain and use data should be strengthened,and the protection of citizens' right to privacy and personal information should be valued.