Legal Regulation Of Electronic Data Search

Electronic evidence is a kind of information used as evidence,occurring during a criminal case,stored,processed and transmitted in electronic or digital form.Electronic search is investigation into devices or cyberspace with reasonable expectation of privacy suspected to store,process and transmit criminal evidence,performed by the police,aiming for collecting evidence and verifying criminal.The first part contains basic concepts and the necessity of regulating electronic search.Electronic evidence has been defined by Rule on Collection and Cognizance of Criminal Electronic Evidence but it is still confused with video documents.It is necessary to distinguish electronic search from search,seizure,technical investigation,collection and requirement,examination,evidence freeze,evidence recording.To regulate electronic search is to protect reasonable expectation of privacy of the suspect and to regulate both compulsory investigation and consent investigation.The second part is disadvantages in legal regulation of electronic search in China,concerning class of procedures,details of search warrant and approving authority of search warrant.There are no rules of electronic search nor electronic search without warrant.In Rule on Collection and Cognizance of Criminal Electronic Evidence,online search cannot be distinguished from online long distance investigation.It is not clear whether to classify procedures when searching the third party.Vague description on warrant may lead to general searches.On the contrary,specific description would lessen warrants adequately and focus object of showing warrant.Scholars have reached a consensus that the approving authority of search warrant should not be held by public security organ itself.Should courts or procuratorate hold the authority is still being debated.This essay holds the view that courts should not approve search warrants because there is no judicial review tradition or writ system concerning courts and judges in China and it is procuratorate who holds the authority of legal supervision.Besides,the current reform of judicial affairs shows little possibility of transferring the authority to courts.The third part contains feasible design of legal regulation of electronic search.Electronic search procedures should be classified into search with warrant,search incident to abandonment of reasonable expectation of privacy,search incident to lawful arrest under plain view and search under urgency.There is no need to classify procedures when searching the third party.Specific description of search reason and search extent should be legally stipulated and policemen should describe specific object before sending warrant request.The specific requirement should also be applied to evidence request for fear that policemen may avoid using search warrant.In addition,the approving authority of search warrant should be born on procuratorate.