Conflict And Solution Of Cross-border Criminal Electronic Evidence Acquisition

With the development of information technology,people’s activity space expands to virtual network,and electronic data has become an important evidence in criminal investigation.Cloud computing stores and accesses data and programs through the Internet rather than computer hard disk.It not only prevents data loss caused by computer crash,but also provides a convenient file sharing medium.However,the rise of cloud computing also indirectly increases the difficulty of accessing and obtaining cross-border electronic evidence.First,when data is shared and stored among multiple servers,cloud service providers often actively divide the data into several pieces and store them on servers in different jurisdictions,which means that in order to obtain specific electronic evidence,law enforcement agencies may need to start cross-border data access procedures between different countries,the cumbersome review procedures in the traditional mutual legal assistance procedure will greatly prolong the time of prosecution and judgment.Secondly,the key data algorithm in cloud computing may move data from one server to another according to the user’s location,effective bandwidth and legal provisions.When the data is segmented and moved,the authorities of the requesting country and the cross-border cloud service provider may not know the physical storage location of the requested data until the relevant data is retrieved.Finally,the ownership of an e-account cannot usually be determined without careful examination of its contents.For example,when creating a Microsoft e-mail account,U.S.citizens may declare that they are Irish citizens,which will cause Microsoft to store their data in Ireland,simply retrieving data does not help law enforcement authorities or network service providers understand the actual identity of users.On the premise of respecting the sovereignty of various countries,the traditional path realizes the cross-border access of electronic evidence through criminal judicial assistance procedures.However,practice shows that the mechanism has many procedures and low efficiency,and can no longer meet the needs of cross-border electronic evidence collection in pursuit of cross-border concept.In this context,the United States and the European Union replace the data storage place standard with the data controller standard,so as to obtain the right to take the electronic evidence directly from network service providers.This practice not only improves efficiency,but also raises questions of legitimacy,and there exists potential risk of violating the sovereignty of other countries.Different evidence collection modes have conflicts in the field of cross-border criminal electronic evidence acquisition.The first chapter expounds the current "staggered attack and defense" attitude of various countries towards the acquisition of cross-border criminal electronic evidence.On the one hand,in order to protect national security and social public order,they strictly prevent data from leaving the country,on the other hand,for the electronic evidence located abroad that plays a role in the investigation of specific criminal cases,they expand the scope of accessing overseas data as much as possible.The United States,the EU and China are the most representative subjects: the Cloud Act of the United States establishes the data controller standard,advocates direct access to e-evidence for data controllers with substantive connections,and strengthens management in the form of identifying a qualified government in the face of foreign evidence collection requests.Through the Proposal for a regulation on European Production and Preservation Orders for electronic evidence in criminal matters,the EU emphasizes the protection of data under the condition of supporting the standards of data controllers.Based on the traditional regional jurisdiction,China adheres to the standard of data storage place and obtains the domestic evidence through the mutual legal assistance treaty in the face of the request for domestic evidence.However,in specific practice,there are unilateral ways to obtain overseas criminal evidence through remote inspection and other unilateral ways.Generally speaking,the current conflict of cross-border criminal electronic evidence acquisition is mainly reflected in the mutual exclusion between the data storage place standard and the data controller standard,as well as the value choice between the free flow of data and the protection of data rights.The second chapter mainly discusses the reasons for the conflict of cross-border criminal electronic evidence acquisition.The dispute between the data controller standard and the data storage place standard mainly stems from the differences in the understanding of data sovereignty among countries under the particularity of cyberspace virtualization,and made different choices at the level of reasonable respect for national sovereignty and the pursuit of criminal investigation efficiency.In addition,in terms of value choice,the United States has adopted a relatively loose legislative model to broaden the international economic and trade market and pursue higher economic value by improving the freedom of cross-border data flow;The EU has promoted data rights to the same important position as human rights,adopted relatively strict cross-border mobility standards,strengthened supervision to fully protect the security and privacy of personal data and pursue higher security value;China also insists on giving priority to ensuring data security and allowing data to flow conditionally.Therefore,different countries will have different coordination methods in balancing the relationship between data security and data freedom.The third chapter further discusses how countries can resolve the conflict through bilateral or multilateral cooperation and reach an agreement on the cross-border access of criminal electronic evidence.On the one hand,the United States,Europe and other countries extend the provisions of domestic laws to the international level through administrative means.The United States mainly consolidates its dominant position by identifying qualified governments,while the European Union advocates certification "adequacy decision" to ensure that outbound data can be protected no less than domestic data,foreign governments can only be committed and modify their domestic law rules accordingly.On the other hand,in terms of coordination at the international level,the United States advocates the universal application of the existing rules under Article 32 of the Convention on Cybercrime as an international standard,while China,Russia and other countries advocate multilateral consultations under the framework of the United Nations to formulate new evidence collection rules.Therefore,the existing cooperation methods are based on the premise that countries protect their national interests to the greatest extent,and cannot reach a universal and authoritative international criminal electronic evidence acquisition system in the short term.The fourth chapter mainly discusses the construction of China’s cross-border criminal electronic evidence retrieval system under the current situation.Network security is related to national security,and the access of cross-border criminal electronic evidence takes cyberspace as the carrier,which also needs to pay attention to risk control.At the level of external evidence collection,in view of the surge trend of overseas access of criminal electronic evidence and the policy of severely cracking down on criminal crimes,simple defense and closure strategies are not the best way.On the basis of respecting the national sovereignty of all countries,China should improve the efficiency of evidence collection by signing bilateral or multilateral evidence collection agreements,carry out consultation and cooperation with the help of the platform of international organizations,and standardize the existing unilateral evidence collection mechanism to ensure the legitimacy of evidence collection activities.At the level of evidence exit,at present,the United States and Europe,with their advantages in the field of information technology and digital market,realize the long arm jurisdiction of cross-border evidence collection all over the world.China needs to improve the exit review and evaluation mechanism of criminal electronic evidence,adhere to safeguarding national sovereignty and data security,and use the principle of reciprocity and practical connection to avoid unreasonable evidence collection requests.