The Challenge Of The US Cloud Act To The Cross-border Electronic Forensics System And Its Countermeasures

In recent years,with the rapid development of technology,people's lives are increasingly inseparable from the network,and various network electronic data is flooding all aspects of people's lives.While bringing innumerable conveniences to people's lives,it also poses new challenges for the criminal investigation agencies of various countries to obtain evidence.Due to the development of technology and the global nature of the Internet,cross-border storage of electronic data is no longer a problem,and investigative agencies have to face the problem of globalization of criminal data.More and more evidence is stored in the cloud,often in different countries outside the country.In order to obtain this data,law enforcement agencies need to retrieve electronic data from remote servers.However,the right to invest has always been characterized as an important part of state power.Therefore,in principle,this power can only be exercised within a country.In other words,if it is necessary to collect electronic data stored outside the country,in principle it can only be multilateral or Bilateral criminal justice assistance mechanism.However,because the traditional criminal justice assistance mechanism procedures are lengthy,complex,and often time consuming,and the electronic data stored in the cloud is not stable,if the assistance of the actual storage country is requested in accordance with the judicial assistance procedure,it is highly likely that the request will arrive.Therelevant data has been changed or even deleted before the data is actually stored in the country.Therefore,the traditional criminal justice assistance system not only imposes a heavy burden on the investigation agency but also is not conducive to the timely detection of the case.In this context,a cross-border electronic forensics system unilaterally carried out by a country's investigative agency came into being.The Clarification of the Legal Use of Foreign Data Act(CLOUD Act,Cloud Act)was signed by the President of the United States in March 2018,and the Cloud Act came into force.The introduction of the US Cloud Act means that US law enforcement agencies can directly force Internet service providers in the United States to disclose electronic data they control,whether they are stored in or outside the country,without the consent or cooperation of foreign governments.The Cloud Act allows US law enforcement agencies to circumvent multilateral and bilateral criminal justice assistance channels.Without notifying data storage countries,domestic service providers are required to disclose electronic data stored abroad for self-acquisition,not only for infringing data.The judicial sovereignty of the actual storage country has also profoundly challenged the traditional Cross-border Electronic Forensic System and the order of international law.This article takes the "Cloud Act" and the Cross-border Electronic Forensics system as the research object,and discusses the "Cloud Act" by combing the "Microsoft Case" that triggered the "Cloud Act" and combining the main contents of the latest "Cloud Act".A breakthrough in the traditional cross-border electronic forensics system was introduced.At the same time,this paper makes a detailed analysis of the shortcomings of the existing cross-border electronic forensics system,and on this basis demonstrates the challenge of the "Cloud Act" on the cross-border electronic forensics system.Finally,this paper provides suggestions on how China should respond to the introduction of the Cloud Act and how to improve its cross-border e-discovery system.This article consists of five major parts.In the introduction part,the questions are put forward,the research value and significance of this paper are clarified,the related literatures at home and abroad,the main research methods and the structure of thearticles are reviewed,and the main innovations and shortcomings of this paper are pointed out.The first chapter introduces the background and main content of the US Cloud Act.From the background of the "Cloud Act",that is,"Microsoft Case",analyze the main litigation process of the "Microsoft Case" and the main legal disputes of the case,and provide a detailed overview of the whole process of the "Microsoft case",which leads to the "cloud" The promulgation of the bill in the form of legislation timely settled the legal disputes in the case represented by the "Microsoft case",and met the practical needs of cross-border electronic forensics criminal justice in the context of cloud storage.Next,we will analyze the main contents of the "Cloud Act",and introduce the two aspects of the acquisition of overseas electronic data by the United States and the acquisition of electronic data by the foreign government.In the second chapter,the "Cloud Act" introduced the challenge of cross-border electronic forensics system.The shortcomings of the existing cross-border e-discovery system and the introduction of the Cloud Act will address the challenges of the existing cross-border e-disciplinary system.Firstly,it analyzes the dilemmas that the three cross-border electronic forensics methods adopted by countries in criminal investigation are facing.Then it discusses the challenges of the “Cloud Act”on the cross-border electronic forensics system,which is mainly reflected in three aspects: First,the “Cloud Act” adopts the “data controller model”,which deepens its relationship with the “data storage mode”.The conflict of data jurisdiction between the two;second,the introduction of the "Cloud Act" may lead to the emulation of extraterritorial countries or regions,the cross-border e-discovery scheme under the unilateral framework of collaborative forensics is more widely adopted in national legislative plans.Third,according to the provisions of the "Cloud Act",the criminal investigation power has been expanded,and the rights protection of criminal suspects will be threatened to a greater extent.The third chapter puts forward relevant suggestions for China's response after the introduction of the "Cloud Act".It mainly combs the current situation of China's current cross-border electronic forensics system.Combined with the previous article,it proposes three suggestions for how to deal with the "Cloud Act" and how to improve China's cross-border electronic forensics system: on the one hand,moderately release data sovereignty Absolute restrictions,under the premise of reciprocity and reciprocity,allow other countries to obtain data in China through data disclosure by service providers.The second is to strengthen the exploration of the scope of data sovereignty and criminal jurisdiction standards,clarify the scope of application of data sovereignty in China,delineate the jurisdictional boundaries of data sovereignty;and incorporate criminal jurisdiction into the data sovereignty strategy considerations.The third is to improve the judicial assistance mechanism from the level of international cooperation.In the conclusion section,the full text is summarized.Re-emphasizing the "Cloud Act" introduced the challenge of cross-border electronic forensics system and China's response and choice.