【Global Vision】
In the era of "Internet +" where everything is recorded
What to do with virtual property floating on the network
Author: Liu Junjie (Lecturer, School of Marxism, Chinese Min University, Researcher of Contemporary Political Party Research Platform)
In the "Internet +" era, with the vigorous development of Internet technology, derivatives of electronic networks such as game coins and game devices are becoming more and more common, and the phenomenon of infringement of virtual property is not uncommon. Although unlike real-world objects, these electronic data that exist on the Internet have no specific physical form, but they still have various real-world values, including emotional value and transaction value. During the epidemic, if a person dies suddenly, what electronic legacy he has left on the Internet may not even be clear to his family. Even if it is known that the deceased owned some electronic payment accounts and social media accounts, who has the authority to dispose of these assets? The accompanying issues such as virtual property inheritance have caused a lot of legal disputes in many places. How to strengthen the legal protection of virtual property is a common problem facing all countries in the world.
Who can flip through my chat history
As early as 2003, UNESCO promulgated the Charter for the Protection of Digital Heritage, which stipulates that digital heritage consists of unique resources of human knowledge and expression, including cultural, educational, scientific and administrative resources and information on technology, law, medicine and other fields that are digitally generated or converted from existing analog resources into digital forms.
In the United States, the birthplace of the Internet, due to the federal system, although federal laws are more effective than state laws, each state can make its own laws, and federal laws cannot arbitrarily change the laws of each state. Thus, in the United States, the protection of virtual property is also achieved by the individual states' own laws rather than uniform federal laws. And the United States is a country that attaches great importance to case law, and its virtual property law rules also include the jurisprudence of the courts.
U.S. courts have always maintained a very positive attitude towards virtual property inheritance. In 2004, Justin Esworth died as a soldier in the U.S. Marine Corps in the Iraq War, after which his family wanted to obtain the content of his Yahoo Email account, but Yahoo refused on the grounds of protecting the privacy of customers, and later the court in Oakland County, Michigan, upheld his family's claim, ordering Yahoo to copy the mailbox content in the form of a CD-ROM and hand it over to Esworth's relatives to meet the relatives' emotional sustenance for the deceased. It is explicitly recognized that the e-mail address can be used as the subject matter of inheritance. Since 2004, when the world's first virtual property inheritance case was the Justin case, the U.S. states have successively passed digital inheritance-related bills, and the U.S. Uniform State Law Commission has also passed a model law on digital asset inheritance, the Uniform Trustee Access to Digital Assets Act, which, although not legally effective, provides a model for state legislation, and the Delaware House of Representatives has recognized the legal effect of this model law within the state. Under the strong protection of virtual property inheritance by the statutes and case laws of the states in the United States, many private companies in various states have charged fees to provide virtual property custody services for individuals, including the establishment of electronic wills and the entrustment of virtual property to heirs.
In the United States, cases of infringement of virtual property are handled in accordance with federal uniform laws such as the Anti-CyberAggregating Consumer Protection Act passed by the U.S. Congress, as well as a number of case law determined by the courts. As early as 1996, the judge in the Zedenborg case argued that the new type of property should be recognized as a network domain name. In 2003, in Kreman v. Cohen, Judge Alex Kosinski of the Court of Appeals held that domain names, which are worth millions of dollars, are valuable legal property and can apply the doctrine of movable property infringement. Of course, in fact, whether many virtual properties are property worthy of legal protection is still controversial and ultimately inconclusive. For example, in the famous "Bregg v. Linden Research Company" case, the court has not yet ruled on whether the ownership of land or residence in the online virtual game is protected by law, and the parties have reached a settlement.
Germany is the first country in the world to recognize Bitcoin as a virtual currency, recognizing Bitcoin as a legal digital currency. The European Union also decided in 2015 to use Bitcoin as a regular currency without VAT. Many German scholars also have a more positive attitude towards virtual currencies, and study virtual currencies in the field of banking law. On the issue of virtual property inheritance, many scholars believe that the property attributes of virtual property should be recognized, and the provisions of article 1922 of the German Civil Code on property inheritance can be applied. In addition, the German Data Protection Act regulates other issues of virtual property online. German courts have also largely held the position of recognizing the inheritance of virtual property. In a civil case where a minor was killed in an accident, her parents' request to view her Facebook content was rejected in order to learn about the accident, but the German district court eventually upheld her parents' claim. At the specific operational level, some courts in Germany have held that heirs must sign a contract with the service provider to inherit the testator's account information according to the testator's will.
South Korea is almost the most developed country in the world's game industry, but the legislators initially held an attitude of denying online virtual property, completely denying the legitimacy of virtual property through legislation, and even prohibiting the transaction of virtual property. However, it was later found that it was completely impossible to prohibit the phenomenon of privately trading virtual property such as virtual devices and virtual items in online games in social life, but it caused many problems, so on December 14, 2006, the National Assembly approved and passed the "Game Industry Revitalization Law", officially recognizing the legality of virtual property.
Although "invisible" can be "criminalized"
There is a lot of research in the United States on the crime of theft of virtual property. Many scholars believe that the theft of virtual property can be directly punished as an ordinary theft crime. For example, in a virtual property theft case, a teenager transferred virtual furniture from other user accounts to his and his friends' accounts. In this case, some scholars in the United States believe that this is similar to the theft of other people's credit cards, bank cards, etc., and can be convicted and punished according to ordinary theft.
However, in Germany and Japan, the protection of property in criminal law is strictly subordinate to civil law, because german and Japanese civil law excludes incorporeal objects such as property interests as the object of protection under civil law, so the objects of theft in German and Japanese criminal law are all physical objects. Virtual property is also an incorporeal object, so theft of virtual property cannot be punished as theft. There are also views that the act of impersonating a user to steal virtual property also has a fraudulent nature, and the crime of fraud can be established, but this act does not deceive natural persons, but computer information systems, violating the common sense that "machines cannot be deceived", which does not meet the provisions of ordinary fraud crimes. Therefore, in order to punish the theft of virtual property, the German and Japanese criminal law stipulates the crime of using electronic computers for fraud.
Article 263a of the German Penal Code for the theft of other people's virtual property sets up a special "computer fraud crime", which stipulates that "intending to illegally obtain property benefits for oneself or a third party, using abnormally written procedures, without the right to use data, or otherwise without the right to intervene in information operations, affecting the results of information processing, causing damage to the property of others, shall be punished by imprisonment of not more than five years or a fine". Moreover, paragraph 3 of the article stipulates that the preparatory act of fabricating computer programs for the purpose of committing the above-mentioned computer fraud, so that oneself or a third party can acquire, sell or preserve such preparatory acts, shall also be punished by imprisonment of not more than three years or a fine. In order to punish the illegal acquisition of other people's electronic network information such as illegally breaking access protection and obtaining other people's electronic network information, using technical means to intercept the transmission of other people's information, the German Criminal Code Article 202a stipulates the crime of snooping data and the crime of intercepting data, and the violation of these two provisions will be punished by imprisonment of not more than three years or a fine. Moreover, 202c stipulates that preparatory acts such as making, selling, and disseminating information storage passwords or computer programs for the purpose of snooping and intercepting data shall be punished by fixed-term imprisonment of not more than two years or a fine. In principle, the criminal law does not punish the preparatory acts of crime, while the German criminal law punishes the preparatory acts of infringing on virtual property, and also punishes the preparatory acts of snooping and intercepting electronic data, reflecting the importance that legislators attach to the protection of virtual property and electronic network information related to virtual property.
In order to protect property interests other than physical objects, such as creditor's rights, various services and services, the Japanese Criminal Law has set up a special "crime of fraud of interests" in addition to the crime of fraud provided for in Article 246, Paragraph 1. In order to strengthen the protection of virtual property, article 246 bis of the Japanese Penal Code has set up a special "crime of fraud in the use of electronic computers", which stipulates that "for computers for which to handle affairs, false information or improper instructions are entered into, so as to make electromagnetic records of the loss or modification of property rights, or to make false electromagnetic records of the acquisition, loss or modification of property rights for others to use." The acquisition of an unlawful advantage in property or the acquisition of another person shall be punishable by imprisonment for a term not exceeding ten years. In order to achieve penalties for infringement of computer network systems, Article 161 bis", "The crime of improperly making and providing electromagnetic records", stipulates that "whoever, for the purpose of making an error in the handling of another person's affairs, improperly makes an electromagnetic record of the rights and obligations for the purpose of handling the affair or proves the facts shall be sentenced to fixed-term imprisonment of not more than 5 years or a fine of not more than 500,000 yen." In order to punish the crime of illegally invading other people's electronic accounts, Japan's Law on Prohibiting Illegal Access, which was revised in 2012, has established new crimes such as illegally obtaining other people's IDs and passwords. Violation of the provisions of the Act is punishable by imprisonment for up to three years or a fine of up to one million yen. For access managers, the law also clearly stipulates that those who knowingly provide the account password of others for the purpose of illegal access will be sentenced to imprisonment for up to one year or a fine of up to 500,000 yen. The Japanese Criminal Law not only clearly punishes the infringement of virtual property, but also sets up a thorough legal network for all kinds of acts that infringe on computer network systems and electronic account information, which is actually a preparatory act for punishing the infringement of virtual property, which is more conducive to preventing infringement of virtual property.
The pressing virtual property protection challenge
In the information network era, all kinds of virtual currency (including Bitcoin, game currency, etc.), all kinds of electronic accounts (including online store accounts, email addresses, mobile phone numbers, QQ numbers, WeChat accounts, Weibo accounts, game accounts), game equipment, personal online points download permissions and other virtual property patterns and types emerge in an endless stream, virtual property has become a necessity of social life, but also has a certain economic value. Moreover, virtual property, such as electronic accounts, also involves a large amount of citizens' personal privacy information. With the further development of Internet technology, the need for the protection of virtual property will be more prominent in the future.
At present, countries around the world generally recognize the legitimacy of virtual property and recognize the inheritance of virtual property. However, even if it is recognized that heirs can inherit virtual property, there are still many specific operational issues involved in the inheritance of network virtual property. Although allowing online virtual property inheritance does meet the strong needs of virtual property owners and heirs in practice, because virtual property such as electronic accounts store a large amount of personal privacy information of account owners, the privacy and information security of account owners must be ensured in the inheritance process. If the account owner expressly prohibits access to his data from being accessed by others in his will, the inheritance of the account owner may be excluded for the sake of protecting the privacy of the account owner. If the account owner designates an heir in the will or meets the conditions of legal succession, the heir has the right to obtain the data information of the account owner, and the network data service provider must perform the obligation of cooperation, and if the network data service provider refuses to cooperate, the legal heir shall be legally allowed to obtain the data information of the account owner through other means.
Of course, in order to prevent the network data provider from infringing or refusing to perform the data transfer obligation, the account owner can deposit the password in advance to the court, notary office and other institutions, and can also provide it to a reliable third party. However, in the latter case, there may be a risk that data privacy will be leaked by a third party; in addition, the account owner can also make very detailed and specific instructions on the handling of electronic accounts in the will, including the relationship with network data service providers and probate agents, how to prevent the risk of data leakage, etc., so as to avoid unnecessary disputes and troubles. In Germany, the notary industry has already begun to actively practice the prevention of "electronic heritage" entrustment, and other countries may learn from it.
Although there are some views that deny that virtual property has economic value and thus deny that virtual property is worthy of criminal law protection, at present, all countries have adopted a more positive attitude towards the criminal protection of virtual property, and infringing on other people's electronic network information and stealing virtual property with property value may constitute a crime. Virtual property has obvious economic value, Germany, Japan, etc. have recognized the protection of virtual property in the criminal law, Germany and Japan set up a special use of computer fraud crimes, and the punishment for stealing virtual property is exactly the same as ordinary fraud crimes, interest fraud crimes, some areas also set up special crimes of obstructing the use of computers, the punishment is also very large, these provisions open up the criminal channels for the protection of network virtual property. Not only that, the criminal laws of Germany and Japan have also increased the criminal punishment for the infringement of computer systems and the infringement of electronic information data related to virtual property, which will be conducive to protecting the data security and privacy security of citizens in the information network era, in fact, the criminal law protection is a step closer, which can achieve the preventive function of reducing the infringement of virtual property.
Of course, the boundaries between electronic data and virtual property are not clear-cut. Virtual property itself can also be said to be a kind of electronic data, but electronic data can only become virtual property worthy of criminal law protection if it has a certain property value. For the criminal protection of virtual property, the following points need to be paid attention to in the future:
First of all, as long as it is a virtual property with economic value, it is worthy of criminal protection. It has been argued that game items relating to equipment should not be identified as virtual property and should not be granted criminal protection if they are not obtained through the payment of consideration. However, since ordinary property acquired through gifts, etc., by other means, is subject to criminal protection, there is no reason to deny that virtual property acquired through points or other means without payment of consideration should be subject to criminal protection.
Secondly, for virtual property, for example, the electronic account of a celebrity or internet celebrity with economic value, how to calculate its economic value, so as to calculate the corresponding amount of crime, each country should formulate relatively uniform and clear standards.
Finally, due to the hidden and convenient characteristics of virtual property exchanges, in the future, it is also necessary to be vigilant against criminal crimes such as money laundering, evasion of foreign exchange supervision and terrorist financing related to virtual property, and increase the criminal penalties for corresponding crimes.
Guangming Daily (2022.05.12. 14th edition)
Source: Guangming Network - Guangming Daily