Emin
Professor, Doctoral Supervisor, School of Law, Southwest University of Political Science and Law, Doctor of Laws
Objectives
1. Background of the creation of the basic right to information technology
2. Reasons for the creation of the basic right to information technology and disputes arising therefrom
The impact of the fundamental rights of information technology on German legislation
IV. Enlightenment on the Improvement of Legislation on Remote Inspection Measures for China's Network
In 2008, the German Federal Constitutional Court decided to create a new fundamental right, the fundamental right to information technology. The creation of the fundamental right of information technology clarified the nature of online search intervention in fundamental rights, provided a constitutional basis for the strengthening of the legal control of the measure, and had an important impact on the revision of the German police administrative law and the criminal procedure law. The mainland can learn from Germany's experience and legislate and improve the measures for remote inspection of the network. Specific suggestions include: clarifying that online remote inspection measures have the nature of interfering with citizens' basic rights, and when the Constitution is revised in the future, the rights and interests of personal information or privacy will be clearly defined as basic rights, providing a constitutional basis for strengthening the legal regulation of online remote inspection measures; adding objective provisions on initiation certification standards and the principle of last resort; implementing the principle of increased approval, and the high-intensity telephone monitoring and network remote inspection should be examined and approved by the director of the public security bureau at the districted city level; and the obligation to destroy data is strictly stipulated Add procedural sanctions for illegal use of network remote surveys and collections of evidence.
In order to strengthen legal control over online search measures, in 2008 the German Federal Constitutional Court created a new fundamental right , the fundamental right to information technology – by decision. The creation of the fundamental right to information technology clarifies the nature of online search intervention in fundamental rights, providing a constitutional basis for the legal strengthening of the control of the measure. Subsequently, in order to implement the requirements of the Federal Constitutional Court to guarantee the basic rights of information technology, the German legislature has amended the Police Administrative Law and the Criminal Procedure Law respectively, so that online search has officially become a statutory measure that meets the constitutional requirements.
In recent years, in order to combat the increasingly rampant cybercrime, online search-like online detection methods have also boomed in China. However, for this emerging investigative method, whether it is the concept of regulation, the technology of regulation or the density of regulation, there are still many deficiencies in the law. In view of this, the author intends to comprehensively and systematically sort out the creation process of the basic right of information technology in Germany, explore the connotation and nature of the basic right of information technology, and expound the impact of the basic right of information technology on German legislation, in order to provide useful reference for the legislative improvement of China's network remote inspection measures.
The creation of the fundamental right to information technology is closely related to the emerging online search measures. The so-called online search refers to the state secretly invading the network information system of others to search. The German federal government has described "online searches" :( police) that do not have to be next to a computer to search for computers in the distance to discover what is stored on them. In response to online searches, the German Federal Supreme Court has made several rulings, first ruling on loose legal opinions, and later rulings on strict illegal opinions. The later ruling had an important impact on the decision of the Federal Constitutional Court, which led the Federal Constitutional Court to create the "Fundamental Right to Information Technology" as a constitutional basis for strengthening the legal regulation of online search.
Decision of the Federal Supreme Court of Germany
1. Ruling of 21 February 2006
On the same day, the investigating judge of the Supreme Court ruled that the online search was legitimate. In the ruling, the procurator applied for a secret search of the remote defendant's computer and its stored data, and the investigating judge agreed to the procurator's application and allowed the investigating organ to secretly implant the computer program into the defendant's computer from the outside, thereby copying and transmitting the information stored in the computer. The investigating judge held that the online search measures taken by the investigating organs had the basis of authorization under the Criminal Procedure Law, which was based on the provisions of article 102 of the Code of Criminal Procedure on searches, that is, "even if the computer being searched is placed in the workplace of a third party, it may be legally searched". In the ruling, the investigating judges cited the traditional search provisions by analogy as the basis for the legal authorization of the emerging online search measures, and their attitude was more relaxed.
2. Ruling of November 25, 2006
Just nine months after the last ruling, the Supreme Court's attitude has changed dramatically. On 25 November, the investigating judge ruled that it was unlawful for the Attorney-General of the Federation to apply for a secret online search of the defendant's computer and stored data, in accordance with articles 102, 105, 1, 94, 98, and 169, paragraph 1, sentence 2 of the Code of Criminal Procedure. In this ruling, the investigating judge held that the traditional search provisions could not be applied by analogy as the basis for the legal authorization of online search measures. The reason is that the traditional search is a kind of public compulsory punishment, the searchee enjoys the right to be present and the right to be informed in person and other defense rights, while the online search is to secretly invade other people's computers, the searchee does not enjoy the right to be present and the right to be informed in person and other defense rights, so the two are not the same. Traditional search rules cannot be applied by analogy to online searches, otherwise the principle of legal reservation that should be observed for compulsory disposition will be nullified.
3. 2007 BGHSt 51, 211 Rulings
In 2007, the Supreme Court again ruled BGHSt 51, 211 that secret online searches could not be based on a lack of legal authorization, in particular article 102 of the Code of Criminal Procedure (traditional search provisions). The BGHSt 51, 211 ruling was triggered by the Federal Attorney General's ruling of November 25, 2006. The brief facts of the case covered by the ruling are: In order to detect a terrorist organization crime, the Federal Attorney-General applied for the approval of a secret online search on the defendant's computer in accordance with the provisions of the Code of Criminal Procedure, such as search, seizure, telephone surveillance, and residential surveillance. The investigating judge rejected the application for the following reasons.
First, the investigative summary provisions of the Criminal Procedure Law cannot be used as a legal basis for initiating secret online searches. The investigation summary clause "only allows the launch of investigative measures that are not authorized by special intervention of the Criminal Procedure Law and only slightly infringe on the basic rights of the counterpart", while the secret online search is a compulsory punishment that seriously infringes the basic rights of the counterpart, so the investigation summary clause cannot be used as the legal authorization basis for launching a secret online search.
Second, the search and seizure provisions of the Criminal Procedure Law cannot be used as a legal basis for authorizing the launch of secret online searches. The current search and seizure provisions authorize a kind of open investigative measure, and when investigators perform a search, depending on the circumstances of the case, the person being searched can immediately know about the search, so as to obtain the opportunity for relief. When performing a public search, the person being searched may choose to voluntarily deliver what should be seized to avoid being searched, or even when the search element is lacking, the person being searched may block the search. However, the secret online search makes the searched person lose these defense possibilities, and the degree of intervention is higher, which is a new type of compulsory punishment different from traditional search.
Third, the communications supervision provisions of the Criminal Procedure Law cannot be used as a basis for legal authorization to launch secret online searches. Secret online search is not the same as communication supervision, when a secret online search is carried out, the investigation organ transmits the computer data that should be searched back for viewing through a Trojan horse program that is actively implanted. At this time, the investigative organ did not supervise the defendant's correspondence with others, but in order to find possible evidence or investigation clues. Before the computer began to communicate, the investigative authorities transmitted the stored computer data back through a Trojan horse program.
Fourth, even if the Federal Attorney General combines provisions on search, seizure, use of scientific and technological tools for surveillance, and communications surveillance, as the basis for legal authorization to launch secret online searches, it is not allowed. In this ruling, the Attorney-General of the Federation has combined numerous mandatory sanctions provisions and clarified that launching a secret online search has complied with a number of elements of these mandatory sanctions provisions, such as the principle of felony, the principle of suspicion, the principle of last resort, the principle of proportionality, and the principle of judge retention. The investigating judges continued to hold that the combined provisions could not serve as a basis for legal authorization to launch secret online searches, mainly because they violated the principle of legal reservation. "In order to create a basis for legal intervention for new investigative measures that may be carried out technologically, it would be incompatible with the law to incorporate individual elements of certain intervention authorization provisions. In doing so, the principle of legal reservation that contradicts the fundamental right to intervene with the principle of legal clarity that norms of intervention in criminal procedure should have. Although the principle of proportionality may limit statutory authority in individual cases, it cannot replace a non-existent basis for the authorization of intervention. ”
The BGHSt 51, 211 decision is the most important decision of the Supreme Court of the United States in response to online search, and the main thrust and rationale of the ruling directly inspired the Federal Constitutional Court, which led to the Federal Constitutional Court's constitutional decision to create the fundamental right to information technology one year later.
Decision of the German Federal Constitutional Court
The decision of the German Federal Constitutional Court to create the "Fundamental Right to Information Technology" stems directly from the relevant amendments to the Constitution Protection Act of the State of North Rhine-Westphalia. In 2006, the State of North Rhine-Westphalia added article 5, paragraph 2, subparagraph 11, to the Constitutional Protection Act: "In order to gather information as an intelligence device, the Constitutional Protection Agency may take the following measures in accordance with article 7 ... 11. Conduct clandestine surveillance and other investigations of the Internet, in particular by secretly infiltrating or searching their communications equipment and by secretly accessing data on information technology systems, including by means of technology. "For the first time, this law creates a legal basis for secret online searches.
Four constitutional petitioners filed a constitutional appeal against the Act, arguing that Article 5, Paragraph 2, Item 11, and other articles of the Law violated Article 2, Paragraph 1, of the Basic Law in conjunction with Article 1, Paragraph 1, Article 10, Paragraph 1, and Article 13, Paragraph 1, of the Basic Law.
In 2008, after a trial, the Federal Constitutional Court ruled that Article 5, Paragraph 2, Item 11 of the Law on the Protection of the Constitution violated the "fundamental right to information technology", which is a special expression of the general personality right provided for in Article 2, Paragraph 1, of the Basic Law. "The general right of personality includes the basic right to protect the privacy and integrity of the information technology system, and its scope of protection is mainly to allow users to enjoy the privacy of the production, processing and storage of data by the information technology system; once the information technology system is attacked, so that others can use the performance, operation and storage content of the information technology system, it constitutes an infringement of this basic right." The Federal Constitutional Court held that it is not that the fundamental right to information technology cannot be interfered with, but that the fundamental right to intervene must comply with constitutional requirements, and in this regard the contentious provision is unconstitutional because it does not conform to the principles of clarity and proportionality of the law.
First, the contentious provisions do not conform to the principle of clarity of the law. The principle of clarity of law, also known as the principle of legal reservation in substance, is based on the core connotation of "legislation on how measures of public power may limit fundamental rights (constituent elements)/to what extent (legal effects) should be clear enough to enable the regulated person to clearly foresee and take measures". The Federal Constitutional Court held that the elements of the intervention, as added to article 5, paragraph 2, item 11 of the Constitutional Protection Act, were not sufficiently clear.
Second, the contention clause does not conform to the principle of proportionality. The principle of proportionality is composed of three sub-principles: the principle of appropriateness, the principle of necessity and the principle of narrow proportionality. The principle of appropriateness means that the means of exercising public power must be appropriate and be able to promote the achievement of the purpose pursued. The principle of necessity requires that the means used by the exercisers of public power are necessary and that the damage caused by the means should be minimized. The principle of narrow proportionality requires that the public interest enhanced by the means of the exercise of public power be proportional to the damage it causes. The Federal Constitutional Court held that the contentious provisions met the principles of appropriateness and necessity, but failed to meet the requirements of the principle of narrow proportionality.
Online search is a serious intervention in fundamental rights. This is because secret access to data on it-technology systems will allow countries to access vast amounts of data far beyond traditional sources of information. This massive amount of data may contain detailed information about an individual's lifestyle, personal and business correspondence, private documents, image files or audio files, and records in the form of diaries, based on which a wealth of data is sufficient to infer the overall personality of the person concerned. The implementation of such a measure must have a certain factual basis, which is not sufficient on the basis of speculation or general rules of thumb alone, and it is sufficient to have specific facts that predict the danger, but the contentious provisions are left out of this regard, thus violating the principle of narrow proportionality. In addition, the Federal Constitutional Court held that the contentious provisions lacked sufficient precautions to prevent the interference of state authority in the core areas of absolutely protected personal life.
The Federal Constitutional Court, although it ruled that the disputed article was unconstitutional, did not absolutely prohibit State organs from taking online search measures, but only imposed a series of constitutional requirements on the legal provisions permitting online searches. These constitutional requirements were quickly absorbed by the German legislature and had an important impact on the subsequent amendments to the German Police Administrative Law and the Code of Criminal Procedure.
Reasons for the creation of fundamental rights in information technology
The Fundamental Right to Information Technology created by the Federal Constitutional Court is fully named "The Fundamental Right to Protect the Privacy and Integrity of the Information Technology System". The Federal Constitutional Court chose such a lengthy name to accurately describe the unique interventional nature of online search measures, that is, to undermine the two core principles of information security maintenance - "privacy" and "integrity", thereby highlighting the significance of this fundamental right in maintaining information security technology. The so-called principle of privacy means that information can only be disclosed in front of authorized persons (such as those who have passwords or system administrators, etc.), so if non-authorized persons can see the information in the information system, the "privacy" of the information system is destroyed. The so-called integrity principle means that the information must be complete and correct and cannot be tampered with or deleted arbitrarily, so if a non-authorized person can tamper with or delete the information in the information system without authorization, then the "integrity" of the information system will be destroyed.
The Federal Constitutional Court created the fundamental right to information technology because of the protection loopholes in the traditional fundamental rights in the face of the emerging online search measures.
First, the fundamental right to invigorating a home is not sufficient to protect the rights and interests infringed by online searches. The right to inviolability of dwellings under Article 13 of the Basic Law is intended to protect specific spaces for individual life. The right to inviolability of a dwelling was interfered with only by investigators who invaded the dwelling for the purpose of physically manipulating the information system within the dwelling. A general intrusion by investigators into the information system is not covered by the right to inviolability of the dwelling, even if the IRIS is located in the dwelling. Since data is accessible irrelevant to location, the application of the right to non-infringement of dwellings does not prevent the particular danger of endangering information systems, especially if the information systems are mobile systems, such as laptops, PDAs or smartphones.
Second, the fundamental right to freedom of secret communication is not sufficient to protect the rights and interests infringed by online searches. The right to freedom of secret communication, as provided for in Article 10 of the Basic Law, protects the intangible transmission of information to individual recipients through telecommunications networks. Although the scope of the freedom of secret communication has also been extended to Internet communication services, which not only protect the content of communication information, but also the status of communication information, it does not protect the privacy and integrity of the information system. If the content and status information of continuous communication in the computer network is intercepted by the investigators, whether the investigators take technical measures against telecommunications transmission lines or terminal equipment, they interfere with the freedom of secret communication. However, if the communicator stores the content information and the status information in the information system under his control after the end of the communication process, the information does not fall within the scope of the protection of the right to the freedom of secret communication.
In addition, the Federal Constitutional Court noted that intrusions into information systems aimed at monitoring communications would create suspicions of inadvertent snooping on the system, in which the right to freedom of communications in secret did not provide protection and that citizens should be protected from this particular danger.
Finally, the right to information self-determination is not sufficient to protect the rights infringed by online searches. The right to information self-determination is a fundamental right created by the Federal Constitutional Court in its 1983 decision in the Census case. In that decision, the Federal Constitutional Court held that under modern information processing conditions, everyone's personal data should be protected from unrestricted collection, storage, use and transmission, which is protected by Article 2, paragraph 1, of the Basic Law and Article 1, Paragraph 1, of the Basic Law.
Since the creation of the right to information self-determination, this fundamental right has become an important weapon for the Federal Constitutional Court to review the constitutionality of investigative measures for new surveillance technologies. For example, in both the 2006 "Electronic Search and Tracing" decision and the "Official Secrets" decision, both the Federal Constitutional Court used the right to self-determination to analyse the nature of electronic search measures and measures to obtain information on communication status as interfering with fundamental rights.
The Federal Constitutional Court held that the right to information self-determination, although it also protects personal data, focuses on "the collection and extraction of individual data", while online searches are manifested as the secret search of state authorities to access a large amount of data in the personal information system, and the right to information self-determination cannot resist the risk of personality endangerment caused by such secret search and access to a large amount of information. "The right to information self-determination cannot take into account all the risks of personal endangerment arising from the use of it technology systems, since access to data on such a system allows access to a expressive stock of data without the need for additional data extraction and processing measures. In terms of the extent to which it affects the personality of the person concerned, this access goes far beyond the individual extraction of data for which the protection of the right to self-determination of information is directed. ”
Considering that there is a loophole in the protection of the above-mentioned basic rights for online search measures, the Federal Constitutional Court considers it necessary to create the basic rights of information technology based on the general personality rights stipulated in Article 2, Paragraph 1 of the Basic Law. "The use of information technology is closely linked to personality development and personality harms, resulting in the need to protect fundamental rights. In view of the unhindered development of personality, the people have legitimate expectations and dependence on the state to respect the secrecy and integrity of the information system. "It should only be noted that the fundamental right to information technology is a supplementary fundamental right, and only when other traditional fundamental rights have a protective loophole, the basic right of information technology can be used to fill it." Secret infringement of information technology systems in order to obtain information will result in protection loopholes if they are not covered by the freedom of confidential communications guarantee. This protection loophole should be filled with a general personality right to ensure the secrecy and integrity of the IT system. ”
Controversy surrounding fundamental rights in information technology
Some scholars have strongly questioned this emerging fundamental right. They argue that there is no need for the Federal Constitutional Court to create this fundamental right and could use the existing right to self-determination to counter online search measures.
First, the decision of the Federal Constitutional Court is grossly ill-reasoned. While it is true that the traditional right to inviolability of dwellings and the right to freedom of confidential communication have protection gaps in the fight against online search measures, the right to self-determination of information does not exist. The Federal Constitutional Court's view that the right to self-determination of information can only be used against "individual data collection and extraction" and cannot be used against online search measures (involving large-scale data collection and extraction) is unfounded. From the analysis of the adjudication of the right to self-determination of information mentioned by the Federal Constitutional Court in history, no ruling has ever limited the scope of protection of the right to self-determination of information to "only defend against the collection and extraction of individual data". In the absence of precedent, the Federal Constitutional Court abruptly narrowed the scope of the protection of the right to information self-determination in such a way that it concluded that there was a loophole in the protection of the right to information self-determination, which was seriously insufficient.
Second, there is no difference between the scope of protection of the fundamental right to information technology and the right to self-determination. Judging from the name, it seems that the basic rights of information technology protect the "privacy and integrity of the information technology system", but from the basis of the creation of rights, it is created on the basis of general personality rights. The intrusion of the information technology system by the national public power measures will pose a threat to personality rights, not because the system itself is invaded, but because the personal data stored in the system after the system is invaded will be exposed to the state organs against the will of the parties concerned. Therefore, the basic right to information technology is still related to the protection of personal data, and the protection of personal data is originally within the scope of the right to self-determination, and the scope of protection between the two is the same, and there is no need to create another emerging basic right.
Although the fundamental rights of information technology have been questioned by some scholars, once it was created by the Federal Constitutional Court, it has had an important impact on the legal regulation of online search measures. German legislators have been instructed by the Federal Constitutional Court to reinvent the law and tighten legal regulations on online searches.
Influence on the administrative law of the German police
In view of the important role of online search for hazard prevention in the Internet age, German legislators acted quickly in the field of police administrative law (hazard prevention) to implement the directives of the Federal Constitutional Court by amending legal provisions.
At the federal level, article 20K of the German Federal Criminal Police Act empowers the Federal Criminal Office to carry out online searches and use technological tools to secretly hack into people's information technology systems and collect information from them in order to prevent the harm of international terrorism.
At the cantonal level, article 34d of the Bavarian Law on Police Tasks and Competencies empowers the cantonal police to use technological tools to invade and collect information from the people's information technology systems in order to prevent imminent harm to major legal benefits. Article 31C of the Law of the State of Rhinefaz on Police and Order Organs also authorizes the cantonal police to carry out online searches in the field of hazard prevention.
In 2016, the Federal Constitutional Court, in its BVerfGE 141,220 decision, reviewed the online search provisions of the Federal Criminal Police Act and concluded that the online search provisions of the Federal Criminal Police Act are constitutional, but should also be enriched with protections for core areas of private life. The main thrust of the judgment states: "(1) In order to prevent the danger of international terrorism, the Federal Criminal Police is authorized to use secret surveillance measures (residential surveillance, online searches, telecommunications surveillance, telecommunications data retrieval, and out-of-home surveillance using means of obtaining special data), which are in principle consistent with the provisions of the Basic Law on fundamental rights. (2) The design of the above authority must meet the principle of proportionality. The authority to invade private life in depth must be limited to the protection or defense of sufficiently important legal interests, and the harm to this legal interest must have sufficiently specific foreseeable elements, and only under the restrictive elements can this intervention be extended to unrelated third parties around the locked character. There should be important special provisions for the protection of the core areas of private life, and special protection for persons enjoying professional secrets. Finally, the obligation to destroy personal data obtained must be attached. ”
German legislators quickly absorbed the thrust of the above ruling and re-updated the online search provision in the Federal Criminal Police Act, which came into force on 25 May 2018, using Article 49 to covertly intervene in information technology systems as the legal basis for online searches in the field of hazard prevention.
Influence on German criminal procedure law
The two decisions of the Federal Constitutional Court in 2008 and 2016 also had an important impact on German criminal procedure law. In 2017, German legislators added a special online search law when they added the Code of Criminal Procedure, which fully absorbed the spirit of the directives of the Federal Constitutional Court.
1. Substantive provisions
The updated Code of Criminal Procedure uses article 100b as the legal basis for the use of online search measures and sets out specific requirements for launching. Paragraph 1 of article 100b stipulates: "In the following circumstances, even if the person being interfered with is unaware, it is still possible to invade the information technology system used by the person being interfered with by scientific and technological means, and the information obtained by the system (online search) :(1) a certain number of facts are suspected of being established as the main offender, accomplice or attempted offender of the enumerated crime; (2) the circumstances of the crime are serious, and there are significant difficulties or expected results in investigating the facts of the crime by other means or in the investigation of the defendant's location." "In the case of enumeration of offences, the principle of serious crimes applies, and online searches apply the same list of enumerated offences as in residential surveillance (art. 100b, para. 2).
The online search included the defendant and a third person. Section 100b, paragraph 3, provides that: "Online searches may only be carried out against the accused. However, based on certain facts, there may also be intrusive into another person's IT system: (1) the defendant in the online search warrant uses the information technology system of others; (2) if the defendant only invades the defendant's information technology system, it will not be possible to investigate the facts of the crime or explore the location of the co-defendant, and it may also be done when the online search is carried out so that others cannot avoid interference. ”
Section 100b, paragraph 4, sets out the obligation of technical guarantee and the obligation of written record-keeping. When implementing an online search, it is technical to ensure that: "For personal information technology systems, only the changes necessary to obtain the data can be made; at the end of the online search, the changes made should be technically automatically restored as far as possible; the methods used should be based on the state of science and technology to prevent others from having no right to use; and the copied data should be protected from change, deletion or knowledge according to the state of science and technology." ”
The new law requires enforcement agencies to record in writing each time they use an online search: (1) the name of the scientific and technological method and the time of use; (2) the identification data of the information technology system and the non-temporary changes taken; (3) the information obtained through the investigation; and (4) the organ unit that performed the online search. The reason for the technical guarantee obligation and the written record obligation of the enforcement organ is to facilitate the court's post facto supervision of the legality of the online search and to ensure that the person subject to intervention can obtain the right remedy.
2. Procedural provisions
In terms of approval, the approval process for online search is very strict. Online searches are subject to the same approval authority as residential surveillance, with the principle of absolute judge reservation, i.e., it must be approved by a collegial panel composed of 3 judges, and 1 judge can decide in an emergency. In addition, the new law provides that the approval of online searches shall be subject to the principle of aggravated judge retention approved by a higher court. Specifically, under the new law, online searches can only be approved by a collegial panel of three judges specially established by the district court of the state to which they belong for online leads and residential surveillance, upon application by the prosecutor, and not by a single investigating judge of the district court, and the judge of the online search approval court is not eligible for criminal trial proceedings. When there is a danger of delay, an exception may be separately approved by the presiding judge of the collegial panel. If the chief judge's approval is not corrected and approved by the collegial panel within 3 working days, it loses its validity (article 100e, paragraph 2). In addition, the Approval Tribunal also has jurisdiction over other decisions for online searches, such as suspension of enforcement (Article 100e, paragraph 5), consent to a stay of notice (Article 101, paragraph 7), acceptance of immediate protests of the approval of online searches and legality of enforcement (article 101, paragraph 7), and determination of evidentiary capacity issues when online searches involve the collection of evidence in core areas of private life (article 100d, paragraph 3).
The new law stipulates that the approval and implementation period of online searches shall not exceed 1 month (article 100e, paragraph 2). If necessary to continue the investigation, it may be extended, but each extension shall not exceed 1 month. The overall period of execution has been 6 months and, if any further, shall be decided by the court of the Cantonal High Court for non-functional criminal proceedings.
The decision to approve an application for an online search shall be in writing, and the decision shall be documented: as far as possible, the name and address of the person whose online search was searched;
After the online search is completed, the court that approved the online search shall be notified of the enforcement process and the results of the execution. When the elements of the online search are approved for extinction, the online search shall be stopped immediately, and if the prosecutor does not stop the execution, the court must order the suspension of enforcement;
Personal data obtained through online searches, if no longer required for criminal prosecution and possible court review measures, should be deleted immediately and recorded in the file (article 101, paragraph 8).
The new law sets evidence collection restrictions on online searches. In short, online searches must not infringe on the core areas of an individual's life, and "online searches may not be conducted when there is a factual basis for believing that an online search will only obtain information from the core areas of one's life" (art. 100d, para. 1). Online searches may not be launched against persons who have the right to refuse to testify in a particular occupation (article 100d, paragraph 5). Evidence obtained in violation of the above provisions is absolutely prohibited. If the refusal to testify against the right holder involving a professional support relationship or a family relationship, the online search can be carried out according to the principle of proportionality.
The new law provides for the obligation of the enforcement authorities to inform and the right of the person subject to redress. The person subject to the online search "may apply to the court that approved the online search to review the legality of the online search and the type and manner in which it was carried out within 2 weeks from the end of the online search and the receipt of the notice." An immediate protest may be lodged against a court decision. When an indictment has been instituted and the accused has been informed, the court hearing the application shall decide upon the conclusion of the proceedings" (article 101, paragraph 7). When certain conditions are met, the enforcement organ may suspend or waive the notice.
As can be seen from these provisions of the new law on online searches, German legislators have legally regulated online search measures as the most intrusive investigative measures, and their regulatory density even exceeds that of the most severe residential surveillance. Some scholars pointed out: "If the intervention requirements for listening to telephone calls can be classified as 'A' level, based on legislative proportionality, scientific and technological investigation is oriented to online searches that are more serious than traditional telecommunications surveillance interventions, and its legislative specifications should at least take the 'A+' level as the legislative bottom line, and comprehensively upgrade upwards to meet the human rights protection density that can be equivalent to online searches." ”
China's network remote inspection measures are not sufficiently regulated
China's investigative measures similar to The German online search are online remote inquests. The so-called network remote investigation refers to the investigation activities of conducting inquests on remote computer information systems through the network, discovering and extracting electronic data related to crimes, recording the status of computer information systems, judging the nature of the case, analyzing the criminal process, determining the direction and scope of investigation, and providing clues and evidence for the investigation and cracking of cases and criminal proceedings. Although the Provisions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Collection, Extraction, Review and Judgment of Electronic Data in the Handling of Criminal Cases (hereinafter referred to as the "Electronic Data Provisions") and the Rules for the Collection of Electronic Data Evidence in Criminal Cases handled by Public Security Organs (hereinafter referred to as the "Rules for The Collection and Examination and Judgment of Electronic Data" formulated by the Ministry of Public Security) stipulate the measures for remote investigation of the network with a number of provisions, the density of norms is still seriously insufficient compared with German legislation.
First, there is a lack of objective provisions on the standard of commencement of proof and the principle of last resort. German law requires enforcement agencies to have a "certain factual basis" when taking online search measures, and provides for the principle of last resort. In contrast, China's adoption of the initiation requirements for online remote inspections is very relaxed, and the standard of proof is only required to be subjective "for further clarification of the relevant circumstances", and the principle of last resort of objective description is replaced by vague "if necessary" (article 9, paragraph 2, of the Electronic Data Provisions). Although article 27 of the Rules for the Collection of Electronic Data Evidence stipulates the specific circumstances of remote network remote inspection of remote computer information systems, the legislative language chosen is only subjective "need", and does not stipulate what kind of objective factual basis should be first available to achieve these "needs", and the relaxation of the starting requirements lays a hidden danger for the executive organ to arbitrarily take network remote inspection.
Second, the use of a single provision stipulating two kinds of network remote inspection measures with different intervention intensities does not meet the principle of legal clarity, providing an opportunity for the enforcement organs to avoid the important and the light, and the selective use of procedures to control more relaxed measures. Judging from China's regulations, there are two different online remote investigation measures: one is a non-technical investigation measure, and the other is a technical investigation measure. The intensity of network remote survey intervention in the two methods is obviously different, and the procedural control is also different. Some scholars believe that the first kind of remote inspection is mandatory investigation, and the second kind of remote inspection is a high-intensity mandatory investigation. A provision providing for two types of network remote inspection measures of different intervention intensities, and the provisions themselves are not clearly distinguished, will undoubtedly provide opportunities for enforcement organs to avoid the heavy and light, and the selective use of procedures to control more relaxed measures. "Such rough provisions still cannot be distinguished from technical investigations and online extraction of investigation methods, and there will even be practices in which powers and abilities are repeated, which once again violates the requirements of legislative clarity."
Although some scholars have explained what is a technical investigative measure for network remote investigation, holding that where investigators use means to invade or control other people's computer information systems in the network environment to monitor other people's records, whereabouts, communications, etc., it should be regarded as technical investigation measures. However, this interpretation is still too vague and the other is a doctrinal explanation, which does not provide effective guidance for law enforcement personnel to distinguish between two different online remote inspection measures.
Third, the principle of aggravated approval is not reflected. For online searches, Germany has adopted the most stringent approval process, even stricter than the previous approval process for the most interventionist residential surveillance. Specifically, the residential surveillance is examined and approved by a collegial panel composed of 3 judges, and in an emergency, it can be decided by 1 judge; while the online search applies the principle of aggravated judge reservation approved by the higher court, which is approved by the collegial panel composed of 3 judges of the state district court.
In contrast, although there is a provision that "strict approval procedures shall be undergone in accordance with law" for network remote investigation carried out by means of technical investigation measures on the mainland, it is impossible to see the difference in procedural approval between network remote investigation conducted by means of technical investigation measures and other technical investigation measures. The intensity of such interventions, which do not specifically distinguish between measures, and the general term "strict approval procedures" in general, are manifestations of legislative laziness and failure to accurately implement the requirements of the principle of proportionality.
Fourth, there is a lack of judicial supervision in the enforcement process. The German online search has set up a number of judicial supervision links in the implementation process. For example, judicial supervision is evident in whether enforcement is suspended, whether the notice of suspension is agreed, whether the immediate protest against the legality of enforcement is accepted, and the court for approval of the enforcement process and the results of enforcement should be reported. In contrast, once the mainland's network remote inspection is initiated, it is in a completely closed enforcement process, and it is difficult for other judicial organs to intervene in supervision, which undoubtedly provides institutional convenience for the enforcement organs to arbitrarily exercise network remote inspection.
Fifth, the obligation to destroy data is too lenient. German law stipulates that personal data obtained by online searches should be deleted immediately and recorded in the file if it is no longer necessary for criminal prosecution and possible court review measures. Although the Mainland's Rules for the Collection of Electronic Data evidence stipulate the obligation to destroy data, it is limited to data unrelated to the case, and it does not state whether other data needs to be destroyed in a timely manner, which provides a possibility for the enforcement authorities to repeatedly use these data for other purposes, which is not conducive to the protection of personal information.
Sixth, there is no procedural sanction for the illegal use of online remote survey and collection of evidence. German law clearly stipulates that the use of evidence obtained is absolutely prohibited for online searches that infringe on the core areas of one's life and for online searches launched by persons who have the right to refuse to testify in a particular occupation. In an online search of persons who have the right to refuse to testify based on professional support or kinship, the evidence obtained is weighed and judged according to the principle of proportionality. In contrast, the mainland does not stipulate clear procedural sanctions for the illegal use of online remote survey and acceptance of evidence, which provides a potential possibility for encouraging enforcement personnel to illegally use online remote survey and acceptance of evidence. "Investigators and judicial personnel are very likely to use their technical and legal advantages to directly and secretly copy or download non-public electronic data, and there is no corresponding disciplinary mechanism, including the illegal evidence exclusion clause in the Electronic Data Regulations."
Cause analysis and improvement recommendations
An important reason for the fact that the mainland's legislative provisions on highly intrusive network remote investigation measures are relatively sparse is that the mainland's understanding of the nature of investigative measures is not yet comprehensive enough. The German scholar Niese proposed a dual-function theory of litigation behavior by reflecting on the shortcomings of the traditional theory of litigation behavior. In his view, investigative measures, especially those with the characteristics of compulsory punishment, are, on the one hand, procedural acts carried out for the purpose of completing procedures, and on the other hand, intervention in the fundamental rights of criminal proceedings. Inheriting his ideas, the German scholar Amelung believes that the criminal procedure law should completely abandon the traditional term "compulsory punishment" and replace it with "intervention of the fundamental right in criminal procedure", so as to accurately describe the characteristics of this public law act.
It is precisely because of the fact that investigative measures have the nature of interfering with fundamental rights that Germany's legislation on investigative measures is guided by the theory of intervention in fundamental rights. First, determine whether a certain measure of public power interferes with fundamental rights. What fundamental rights are interfered with? If the answer is yes, further judge whether there is a cause of intervention, i.e. whether the principles of legal reservation, legal clarity and proportionality are in conformity. It can be said that the legislation of investigative measures has been carried out by German legislators under this theoretical framework and has used this theoretical framework to continuously review legislative deficiencies. Taking online search as an example, after the Federal Constitutional Court clarified the basic right of online search to intervene in information technology, German legislators quickly added this measure to the Criminal Procedure Code to comply with the principle of legal reservation, and since then, the online search has been highly regulated with multiple articles to meet the requirements of the principle of legal clarity and proportionality.
On the mainland, on the other hand, at present, it still only regards investigative measures as a means of ascertaining the facts of a case, has not yet fully realized that it has the nature of intervention in basic rights, cannot consciously accept the guidance of the theory of intervention of basic rights, and upholds the traditional concept of "it is advisable to be coarse and not detailed" when legislating, resulting in the phenomenon of rough regulation. Therefore, in order to improve the legislation of investigative measures on the mainland, we should first understand the nature of the intervention of the basic rights of the investigative measures from a conceptual point of view, and consciously take the theory of intervention of basic rights as the guiding ideology of legislation. Specific to the legislation on network remote inspection measures, it can be improved from the following aspects.
First, it is clear that online remote inspection measures have the nature of interfering with the basic rights of citizens. At present, the mainland's normative documents regulating network remote inspections have low validity and do not meet the requirements of the principle of legal retention. This phenomenon arose because Gein did not know what fundamental rights were interfered with by this measure. The basic rights expressly enumerated in the Mainland Constitution are mainly related to investigative measures, such as the right to inviolability of personal freedom, the right to inviolability of personal dignity, the right to inviolability of residence, the right to freedom of correspondence and the right to confidentiality of correspondence. At present, the academic community generally recognizes that online remote inspection has the nature of infringing on personal information rights and interests or privacy rights, but personal information rights and privacy rights are only civil rights, not basic rights expressly enumerated in the Constitution. It is precisely because the nature of the basic right of network remote inquest intervention is unclear that the legislation has relaxed its regulations. A possible solution is to clarify the rights and interests of personal information or privacy as a basic right when the Constitution is amended in the future, providing a constitutional basis for strengthening the legal regulation of online remote inspection measures.
Second, objective provisions on the standard of commencement of proof and the principle of last resort have been added. Reference may be made to the provisions on arrest measures with regard to the criteria for initiating proof. The Criminal Procedure Law stipulates that the evidentiary requirements for arrest are an objective criterion - "there is evidence to prove the facts of the crime", and this objective standard of initiation of proof is conducive to restricting the arbitrary arrest measures of the investigating organs and facilitating the judicial review of the approval organs. The intensity of the intervention of the network remote investigation is no less than that of arrest, and the current subjective initiation standard - "to further clarify the relevant circumstances" should be revised to the objective initiation standard - "there is evidence to prove the facts of the crime". In addition, the term "when necessary" was vague and should be replaced by a clearer principle of last resort, with the addition of the provision "to be used only when there are significant difficulties or no results are expected in investigating the facts of the crime by other means".
Third, implement the principle of aggravated examination and approval. The mainland currently stipulates that "where it is necessary to adopt technical investigation measures to conduct network remote investigations, it shall go through strict approval procedures in accordance with law." Article 256 of the Provisions on Procedures for Public Security Organs in Handling Criminal Cases stipulates that where technical investigative measures are adopted, they must be reported to the responsible person of a public security organ at or above the districted city level for approval. In practice, it is generally examined and approved by the deputy director in charge of criminal investigation work of the public security bureau at the districted city level. However, it can be seen from the foregoing analysis that even within technical investigative measures, the intervention of each type of technical investigative measures is different. From Germany's experience, it regards online search as the most intensive technical investigative measure, and applies the principle of aggravated approval. When the mainland reforms the approval procedures for technical investigation measures in the future, it can learn from this experience and adopt differentiated approval procedures. Technical investigative measures of general intensity may be examined and approved by the deputy director in charge of criminal investigation work of the public security bureau at the districted city level, but for high-intensity telephone monitoring and network remote investigation, it should be raised to be examined and approved by the director of the public security bureau at the districted city level.
Repeatedly, the obligation to destroy data is strictly stipulated. The mainland's current data destruction obligations only extend to data unrelated to the case. In order to better protect personal information, future legislation should strictly stipulate the obligation to destroy data. When the electronic data collected through network remote inspection measures is no longer necessary for criminal prosecution, the enforcement authority is required to destroy it immediately and record the destruction.
Finally, procedural sanctions for illegal use of network remote survey and collection of evidence have been added. For major procedural violations, such as circumventing approval procedures and adopting network remote survey and acceptance of electronic data, it shall be absolutely excluded. For network remote inspections that do not meet the requirements for initiation and do not comply with the provisions of the last resort principle, a relative exclusion model may be adopted, and the judge will weigh the trade-offs by synthesizing the circumstances of the case.
Link to the original article
Aimin | The Creation of the Fundamental Right of Information Technology and its Impact on the Legislation on Online Search Measures in Germany – On the Legislative Improvement of Remote Survey Measures on the Mainland Network
Introduction to Learning and Exploration
"Learning and Exploration" magazine is a comprehensive academic journal of social science sponsored by Heilongjiang Academy of Social Sciences, and is now a core journal of the national Chinese, a Chinese social science citation index (CSSCI), and a journal funded by the National Social Science Foundation.