Citizens' Personal Information Risk And Its Criminal Judicial Response In The Age Of Big Data

In the era of big data,personal information protection faces a dilemma: for the purpose of economic efficiency,the commercial value of personal information is huge,so the collection,preservation and use of personal information should be weakened,and the range of personal information that can be reasonably used should be expanded,and even personal information should be developed and used as "common land resources".However,for the purpose of fairness,we should oppose the excessive abdication of individual rights and interests,ensure the individual's right of self-determination of using personal information,and reduce the unintended consequences caused by information flow.The conflict between social ethics and economic benefits is accompanied by the development of big data industry.As a rational economic man,the pursuit of profit and expansion of scale are always the biggest pursuit of big data industry.It is difficult to adjust the status quo of emphasizing development and utilization and neglecting information protection through the endogenous mechanism actively formed by big data industry.It is particularly necessary to cultivate a benign external environment for personal information protection.In the era of big data,risks in the field of personal information are gradually unfold.In the process of personal information collection,the expansion of personal information collection scale,the difficulty in clearly predicting the way of information use,the obscurity of privacy clauses and the passive collection making it difficult to guarantee the information subject's right to know.In personal information processinglink,the only access to logical structured data no longer meet the needs of the precise marketing business,big data trade to get pieces of unstructured or semi-structured data,and through the mass storage,data mining and are large-scale remodeling activity scene elements such as time,place,characters,and to learn the purpose of user requirements;In the process of using personal information,diversified forms of data use also increase the risk of privacy disclosure.In dealing with the new risks in the field of personal information,criminal justice should pay special attention to the balance between privacy interest and social benefits.This text is divided into seven parts.Chapter one and chapter two are the foundation of the theory.The first chapter of this paper introduces the basic situation in the era of big data.Starting from the concepts of big data and the era of big data,this paper analyzes the data risks from the main body of big data,data structure,data collection and processing.Second chapter of this paper introduces the concept of personal information and privacy in the context of criminal unification,define the scope of personal information,distinguishes concepts between the personal private information and open information,direct identification of personal identity information and indirect recognition of personal identity information,the concept of industry body,big data industry are introduced.The third chapter of this paper introduces the existing crime system of citizen's personal information protection.The criminal legislation of the crimes of encroaching on citizens' personal information and computer network crime can protect personal information directly and completely,respectively.As far as the subject of crime is concerned,the criminal legislation protects and limits the control of personal information;In terms of the objective aspect of crime,the criminal law prohibits the illegal transfer of personal information.The fourth chapter studies the determination of the risk of collecting personal information in criminal justice.Firstly,under the guise of "legitimate authorization",the collector of personal information collects and transfers personal information of citizens,which does not meet the legitimate requirements of personal information circulation.The personal information authorization contract is invalid because it lacks legitimacy and covers up illegal purposes in a legal form.Due to the illegality of personal information sources,the responsibility of personal information collection and circulation should not be excluded on the ground of "victim's dangerous acceptance".Secondly,the development of big data industry makes the technology of directcollection of personal information more mature and popular.However,according to the system interpretation,legislative tracing and the comparative study of foreign criminal legislation on personal information,the crime of infringing on citizens' personal information does not regulate the direct collection.Thirdly,the voluntary disclosure of personal information by the individual information subject does not mean giving up his personal information completely.In the absence of written authorization,the reasonable risk expectation of the disclosure of personal information by the individual information subject is investigated.The fifth chapter studies the determination of the risk of saving personal information in criminal justice.The risk of preservation link mainly comes from the improvement of data processing ability.According to the privacy framework of informed consent,the acquisition of personal information through data processing should be regarded as the illegal acquisition of personal information.When examining the degree of personal information de-identification,we can learn from the strategies of the UK and the EU.The re-identification judgment in the UK is mainly based on empiricism.It should consider the changing factors such as the information attribute and the re-identification technology in the case,which are greatly affected by subjective factors.It is a flexible method.The EU's anonymization judgment is more objective based on the judgment of facts,but its specific operation process is more complicated.For the sake of accuracy,the judgment method of EU can be used for reference.The sixth chapter of this paper studies the use of personal information to deal with the risk of criminal justice identification.In the era of big data,personal information can be utilized in various forms.Track of whereabouts and other information does not belong to the traditional meaning of personal information,and because of the high degree of personal dependence,sensitivity,it is included in the scope of protection of the criminal law,in the determination of track of whereabouts information should be examined whether it is real-time and whether it depends on modern technology.In addition,it is difficult for the subject of the crime of encroachment on safety of citizen individual information to become the accomplice of the downstream crime.Under the intervention of Internet factors,the helping behavior of citizens' personal information circulation should be identified with different charges according to the specific situation.The seventh chapter of this paper studies the application of economism dataprotection values in the field of criminal justice.In 2009,the seventh amendment to the criminal law broke through in the framework of computer data protection constructed by civil law and administrative law,and included personal information into the scope of criminal law protection for the first time.Therefore,the risk response of criminal justice is carried out creatively under the premise that there is no legislative foundation in the field of civil and administrative law.In order to balance the relationship between personal information security and the development of the big data industry,the crime of violating citizens' personal information and other charges should be applied with modesty and prudence,allowing reasonable use of personal information.That is,based on the specification guidance of personal information of de-identification and the scene limitation of the rational use of personal information,determine the boundary of reasonable use of personal information.Under the premise of protecting personal information privacy rights,criminal justice should provide reserved space for the development of big data industry.Without the protection of individual rights and interests,it is impossible to talk about the development of big data industry.