Research On Cross-border Data Access System

In the digital age,it is crucial to access to data in criminal investigations efficiently and legitimately.With the development of Internet technology,there is a growing demand for cross-border data access.Cross-border data access is further complicated by the fact that traditional mutual legal assistance mechanisms do not reflect the characteristics of the digital age and that procedures are lengthy and slow compared to traditional physical evidence.It constitutes an obstacle to cross-border data access and hampers the investigation of various types of criminal activities,such as terrorism and financial fraud.Every country faces the challenge of cross-border data access for law enforcement purposes.As a result of this situation,the international community has been actively exploring solutions for cross-border data access by law enforcement authorities in recent years,and breakthroughs have gradually been made in this area.At the level of foreign domestic legislation,the United States,the European Union,Australia and the United Kingdom have put forward their respective solutions.The United States is the forerunner in this field of legislation,CLOUD Act gives law enforcement the legitimacy to obtain data from service providers,and it also creates new models for other countries to obtain data from the United States,offering new ways to access data across borders.The legislation of the European Union,Australia and the United Kingdom is different,but they all embody the influence of the “data controller model”,and the service providers become one of the important participants in the rule-making of cross-border data access.At the international legislative level,the European Commission has begun drafting a 2nd Additional Protocol to the Budapest Convention and has agreed some provisional provisions on cross border data access.The experts group set up by the UN has held many meetings.Due to the large number of countries and the differences among them,the process has been generally slow,but with the facilitation of the UN,about 90 percent of the member state of the UN has initiated or begun reforming legislation on cybercrime and electronic evidence.The new jurisdictional approach advocated by the emerging legislative model has opened up new opportunities for cross-border data access,establishing relatively transparent mechanisms to enhance the efficiency of judicial cooperation;It reflects the balances of interests among sovereign states and between states and data companies;at the same time,emerging legislation has exacerbated jurisdictional conflicts between sovereign states.Basically,it is not possible to construct a global cross-border data access system soon due to the huge differences in political systems and socio-economic conditions,as well as the different interests of the participants.However,the convergence of the existing emerging legislation has shown that the formulation of domestic rules will affect the direction of future international legislation.At the same time,challenges to emerging legislation require future responses: Respecting for the judicial sovereignty of other states,reducing of conflicts of laws between states;adherence to and refinement of the basic standards of substantive and procedural rules;optimizing the process design of existing mutual legal assistance mechanisms to facilitate future international co-operation in cross-border data access.As an advocate of cyber sovereignty,China has always maintained that police cooperation or mutual legal assistance procedures should be used as the ways to access data and that solutions should be discussed within the framework of the UN.However,emerging legislation is a fact that China cannot avoid,whether it accepts it or is passively involved in it.On the one hand,China has adopted a “shut-down” attitude in response to the practices of other countries in accessing data through service providers;on the other hand,China has unilaterally accessed data from other countries in its actual operation,this inevitably conflicts with China’s position on cyber sovereignty.In addition,China has adopted a data localization approach to address the difficulty of cross-border data access.However,data localization is not the best solution,and “shut-down” is not a long-term good policy.In the future,China should enact Act about cross-border data access;absorb the thought of “taking-supply” from the emerging legislation;control the limitation of data localization reasonably.To sum up,using bilateral or multilateral approach to promote the quick access to data.