Research On The Protection Of Rights In Search Of Smart Phone

Smartphone is easy to carry around,applications can be expanded,can connect to the Internet,has the function of telecommunication call,and so on,affecting people's life in many ways.Based on the need to fight crime,smartphone and the electronic data in them have become the search targets of various countries.A smartphone search is a branch of electronic data search,which refers to the acquisition of a smartphone material entity through a traditional search,and then entering the virtual space of the smartphone's electronic data for content inspection.Smartphone search is different from traditional search in that it searches electronic data in virtual space rather than physical space;it needs "two-stage" search instead of traditional "one-step" search,which is divided into "two stages" of collecting and extracting electronic data and checking electronic data;the degree of infringement of privacy,personal information and freedom of communication is far better than that of traditional search.Compared with other electronic data,smartphone electronic data has some particularity.For example,the data can be reclassified according to the data storage mode,and the data APP in the smartphone is also relatively independent;it is massive from the volume of information to the type of information;its data has the characteristics of extreme privacy and stronger interaction.The theories of rights protection of smart phone search system are mainly privacy protection theory,personal information protection theory,control police power theory,communication freedom protection theory.There is a large amount of privacy information in smart phones,the protection of privacy is generally accepted,and its search is bound to invade the privacy space and infringe upon the right to privacy.For this reason,it is necessary to protect the right to privacy.Smart phones will contain a large amount of personal information,and a little carelessness will lead to the disclosure of personal information.Smartphone search should minimize the impairment of the rights of the parties.The right to search on smartphones is not controlled,and the rights of citizens will not be guaranteed.It is necessary to control the search right of smart phone through the principle of proportionality,which can be subdivided into appropriateness,necessity and balance.At the same time,as a means of communication,smartphones carry citizens' right to freedom of communication.The physical seizure and content viewing of smartphone searches are undoubtedly a restriction on citizens' freedom of communication.Restrictions beyond legitimate boundaries would violate freedom of communication.China 's smart phone search has determined that electronic data is a statutory type of evidence in the legislation,but does not make too many provisions for electronic data forensics procedures;the legislative model regulates the integration of smart phone data and general electronic data,and does not provide special smart phone search procedures.When investigating the evidence of a smart phone,the investigating agency rarely uses the smart phone data search procedure explicitly,but instead uses the electronic data inspection program to search the smart phone electronic data.China's smart phone search still lacks protection of citizens' rights.First,no approval is required to initiate a search of smartphones.Investigators decide on their own whether to check smartphones.Second,there is no strict limit on the scope of the search.Investigators can perform carpet searches and freely check all parts of smartphone data.Third,different Electronic data of the right type is not distinguished,and public information,communication information,private information,and personal information are searched without distinction.Fourth,the terms and scope of third-party technical assistance are unclear,and mobile phone manufacturers' lack of regulations to assist in unlocking,and unlimited access to cloud storage data.Fifth,inadequate post-hoc relief,self-discipline relying on investigative power,and lack of judicial relief.In order to improve the protection of rights in search of smartphones.legislation should confirm the special status of smartphone data and construct special procedures for smartphone searches.Make clear the condition of searching smartphone,through the charge evidence request,prevent the search right from being abused,guarantee the right of the party concerned.It is also necessary to establish an examination and approval system,and to search smartphones with the approval of the head of the investigation organ.The scope of the smartphone search needs to be clear,and it is forbidden to turn over the box and reverse the cabinet type search.During search execution,limit arbitrary expansion of the scope of third party technical assistance obligations,clearmobile phone manufacturers in special emergencies to help unlock,and clarify the scope,conditions and content of data extraction stored in the cloud.Based on the principle of "forbidding forced self-incrimination ",the search of smartphone should prohibit forced suspects to cooperate with the search,provide mobile phone password or file unlock code.Strict confidentiality obligations of investigative organs,pay attention to confidentiality in the process of search,irrelevant or useless data should be destroyed in time.The right of relief shall be granted to the party who has been subjected to unlawful search.Strengthen judicial review and exclude illegal evidence.