On The Assistance Obligation Of Internet Service Providers In Investigation And Evidence Collection

With the complication of cyber crime and the networking of traditional crime,Internet service providers play an important role in assisting in investigation and evidence collection.However,at present,China lacks systematic procedural research and rights examination on the assistance obligation of Internet service providers in investigation and evidence collection,which not only affects the efficiency of the performance of assistance obligation,but also threatens the privacy rights of data subjects and challenges the trust cornerstone of the Internet society.Therefore,in order to improve investigation efficiency and protect privacy rights,it is necessary and urgent to systematically analyze the assistance obligation of Internet service providers in investigation and evidence collection from the procedural dimension.This paper analyzes and demonstrates the assistance obligation of Internet service providers in investigation and evidence collection through literature research,comparative research and empirical analysis.The article is divided into five parts:The first part is an overview of the assistance obligation of Internet service providers in investigation and evidence collection.Starting from the definition of the concept of Internet service providers,the types of assistance obligation and the investigative measures that Internet service providers assist in taking,this paper clarifies the basic concepts of research objects.The second part is the theoretical basis of Internet service providers' obligation to assist in investigation.Starting from the triple identity of Internet service providers in the assistance obligation in investigation,this paper explains the theoretical basis of this proposition from two aspects: one is about the theoretical basis that Internet service providers can assist in investigation and disclosure of citizens' privacy,and the other is about the theoretical basis why Internet service providers' assistance obligation in investigation should be regulated.The third part is about the problems of the Internet service providers' assistance obligation in investigation and evidence collection.Through questionnaire survey,document analysis,expert interview,case analysis and other empirical methods,the author finds out that the current problems mainly lie in: first of all,the lack of emergency assistance mechanism.The second is that the authorization procedure for starting the assistance obligation is broad.Third,there is a lack of supervision and restriction in the process of assistance obligation.Fourth,the rights of data subjects are difficult to remedy.Fifth,Internet service providers lack rights.The fourth part is the extraterritorial experience of assistance obligation of Internet service providers in investigation and evidence collection.The author is problem-oriented and draws lessons from foreign law and regulations,data classification and review mode.The fifth part is the regulation path of Internet service providers' assistance obligation in investigation and evidence collection.On the basis of combining overseas experience,scholars' viewpoints and own research,the author puts forward that first of all,the data classification should be refined,the principle of proportion should be followed to carry out emergency assistance,and the post-evaluation of emergency assistance mechanism should be improved.The second is to establish judicial review system to start assistance obligation,and to strengthen the publicity and supervision of the cooperation agreement between the investigative organ and the enterprise.The third is to break the closed loop of investigation,strengthen external supervision,set reasonable time limit and stipulate extension matters,and establish the criminal compliance mechanism.The fourth is to give the data subject the right to know,the right to dissent,the right to correct,the right to be forgotten and the right to claim compensation.The fifth is to grant Internet service providers the right to appeal,suggest and defend,and to establish daily assistance compensation mechanism and lawsuit exemption mechanism.