Text: Zhou Luming Law
Edited by Zhou Luming Law
«——【Preamble】】 ——»
The new generation of information technology such as big data and cloud computing not only rapidly improves the efficiency of production and commercial operation, brings new industrial forms, but also has a more profound impact on social management and people's daily life.
While Internet platforms bring convenience and enjoyment to our lives, they also promote the platform's control over users' personal information, causing a series of problems such as forcing users to "opt in", using algorithms to analyze users, and forcing users to "automatically jump".
Automatic redirection is the most common means of operation of internet platforms, and an in-depth analysis of the economic factors, technical methods, judicial determination of the redirect, and impact on personal information security shall be made of the economic factors behind it, and corresponding solutions shall be proposed, and policy recommendations shall be provided for regulating and restricting the conduct of automatic redirects.
Background analysis of automatic redirection to Internet platforms
By satisfying the needs of users in terms of leisure and entertainment, production and life, social networks and other aspects, the Internet platform promotes user consumption, and then completes the profit accumulation of the platform.
One of the most important ways to win over users is to use a recommender system. At present, the most widely used recommendation system on Internet platforms is the collaborative filtering system, that is, by establishing a similarity relationship model between the historical behavior data and behavior patterns of platform users, the relationship model is used to infer the preferences of users, and the corresponding recommendations are made to users.
The data of the system comes from the behavior data of the underlying users and consists of "explicit feedback data" and "implicit feedback data". Explicit feedback data refers to the user's clear preference performance that is actually retained on the Internet, such as the rating of the purchased item, the evaluation of the corresponding event, and so on.
Implicit feedback data is not clear about the expression of user preferences, but only the existence of objective facts, such as the purchase record of a certain product, the browsing and clicking records of some items or opinions, etc.
By setting the user recommendation system in various software such as news push, social information, and e-commerce, the platform promotes the continuous self-updating of the automatic jump technology due to the consumption, viewing, and sharing needs generated by users when receiving the pushed information.
Since user choice is the key factor in the development of Internet platforms, this has resulted in Internet platforms with a certain user base having a relatively absolute "advantage" in market competition.
The micro mechanism of the cost operation of the Internet platform in economics can be summarized as the sum of the search cost in the early stage and the transaction cost after successful matching. This means that an Internet platform with a certain user base will reduce the search cost in the early stage and the transaction cost after matching.
Internet platforms with user choices also enjoy the Internet externalities of "user lock-in", that is, the "winner-takes-all" effect.
As Demsetz said, "Changes within an economy are the result of changes in economic value, and changes in economic value are due to the development of science and technology and the opening up of new markets."
Internet platforms with "winner" status will absorb more user resources for new products by jumping vertically to other self-operated platforms and horizontally to self-operated new products.
However, small and micro Internet platforms that lack a massive user base choose to use methods such as "automatic jumping" and "inserting links" to introduce a part of user traffic to their platforms, so as to strive for more user choices for the platform to avoid being eliminated by the Internet market. Therefore, automatic jump technology is highly valued by Internet platforms with "winner" status, as well as small and micro platforms.
A full-text search conducted on the China Judgments Network with "automatic jumping" as the cause of action and the time range from 2010 to 2022 yielded a total of 817 judgment documents, including 69 criminal cases, 696 civil cases, and 13 administrative cases.
Based on the compilation and summary of the above-mentioned judgment documents, the judicial determination of automatic jump behavior is generally divided into three types: performance acts, acts of unfair competition, and criminal acts.
By summarizing, analyzing, and sorting out the civil cases of automatic jump in the China Judgment Network, it is found that Internet platforms such as Weibo and WeChat have carried out in-depth business cooperation with third-party platforms such as Tenpay and AutoNavi Software in the fields of payment channels, location information, and order transaction services, and allow platforms to jump to each other through cooperation.
In order to enable consumers to enjoy convenient and efficient information search, ordering, payment and other services, Internet platforms have carried out more intensive and extensive business cooperation.
The "cross-industry cooperation" between the platforms is carried out through automatic jumping, which is a follow-up cooperation based on the sharing of user information between the two parties, so as to realize the integration of customer information, business data and advantageous business, so as to achieve the ultimate goal of win-win.
For example, in the case of a computer software development contract dispute between Shandong Diyun Information Technology Co., Ltd. and Jinan Tengchuang Electronic Technology Co., Ltd., the entrusting party Tengchuang Company and the entrusted party Diyun Company signed the "Diyun Company Product and Service Contract", which stipulated that Diyun Company would carry out software development, and the developed software should be able to support product links and automatically jump to Taobao.
However, the product information in the official account developed by Diyun was not clear after the relevant product links jumped to Taobao, which could not support the development of subsequent consumption functions, so the court ruled that Diyun violated the technical research and development provisions agreed in the contract.
The business technology of each Internet platform has a certain uniqueness, so in order to prevent others from stealing its own technological innovation achievements, the platform can choose to refuse the jump of other platforms, which is the basic right of Internet platforms.
Based on the characteristics of Internet platforms that transcend time and space, real-time interaction, and resource sharing, the means of unfair competition between Internet platforms are novel and complex.
If the jump between different platforms is illegally implemented, in order to enhance user stickiness and provide users with false one-stop convenient services, because the process of implementing automatic jump infringes on the business reputation and trade secrets of other Internet platforms and disrupts the market order, such automatic jump constitutes an illegal or even criminal act.
In the case of Xu Lingxiao's crime of sabotaging computer information systems, the LEG and BLUE logins designed and developed by Xu Lingxiao enabled users to automatically jump to the website address designated by Xu Lingxiao when logging into the website, that is, the legendary game website, and used the automatic jump as a means of hijacking to interfere with the legendary game company, causing the company to suffer serious losses and difficulties in daily operation.
The impact of different types of automatic redirection behaviors on the security of personal information
To achieve automatic redirects between web pages, a trigger point is required. This trigger can be either a "click from the user" or a "free time".
That is, the user does not click on the new content in the web page in a short period of time, resulting in no new tasks being carried out by the system at this moment, so there is a "free time" or "time difference", in which the automatic jump between web pages can be realized.
If there is an "idle time or time difference", it means that the user has not searched for the content of interest, that is, the automatic redirect that occurs in this case has not been selected by the user. Therefore, the automatic jump behavior under different judicial classifications will also have different degrees of impact on the security of personal information.
In the era of digital economy, "data" has become an independent factor of production for the operation of the market economy. The data cooperation between platforms is mostly carried out through SDK collection, local collection and back-end interface transmission.
The use of embedded SDK technology to cooperate with third parties can realize the rapid transmission of information between the two platforms and help the two sides of the Internet platform to better exchange information.
After investigation, it was found that most of the embedded SDK toolkits were produced by third parties, which means that the user information shared between the cooperative platforms will be transmitted and collected by third parties other than the cooperative platforms authorized by the users.
Similarly, for the two cooperation methods of back-end interface transmission and local collection, the user information is not involved in a third party other than the two partners.
However, in both cases, the user information of this website is transmitted by one party of the cooperation through one-time transmission (local transmission) and interface transmission (background interface transmission), and the scope of user information transmission, purpose and scope of use after transmission are unknown, and the risk of personal information leakage still exists.
In the case of unfair competition for the user's choice, the user's right to know, the right to refuse, the right to access, and the right to restrict processing as the provider of information are not effectively protected, and the security of personal information is not remedied after being affected by the act of unfair competition.
The Internet platform pops up an advertising window without the user's authorization through automatic redirect, and automatically jumps to the download page, but the content displayed on the advertising page is often inconsistent with the actual operation of the platform.
Users are forced to download software that they don't need, which affects the customer's experience, and in serious cases, it will also lead to the leakage of private information such as user payment information.
Under the circumstance that automatic reconnection between internet platforms constitutes a criminal act, the risk factors faced by users' personal information security include: leakage caused by information transmission, risks such as information jumping to unknown platforms for illegal storage and processing, and lack of corresponding remedial channels.
When the automatic redirection of an internet platform constitutes a criminal act, the identifiable information of citizens is illegally collected by the criminal suspect and used to commit a crime, which will cause harm to specific citizens. For example, criminal acts will infringe on citizens' personal credit and personal privacy as subjects of information rights and interests.
Strengthen the regulation and restraint of automatic platform jumping
The regulation of automatic jumping behavior shall be coordinated with specific reality, and comprehensive regulation of automatic jumping behavior on internet platforms is carried out at the three levels of industry, administration, and justice, creating an overall planning system in which the platforms themselves are horizontally connected and the government and courts are vertically connected.
Therefore, if we want to regulate automatic redirects, we should start from the improvement of self-discipline in the Internet industry. First of all, the distribution of benefits between the two parties to the user agreement should adhere to the principle of fairness and justice, and equally distribute the rights and obligations between the platform and the user.
The Platform is prohibited from requiring Users to give up control of their personal information in the form of standard clauses, or indirectly requiring Users to give up their control and processing rights over their personal information by means of "consent or withdrawal". Secondly, standardize the content of the user agreement and adhere to the principle of "minimum data".
The scope of collection of user information and the specific channels for its use shall be clarified in advance in the user agreement in the form of standard clauses, and platforms are prohibited from collecting and using user information beyond the agreed scope.
Clarify the platform's specific duty of care for user information. Based on the user's trust and interests in the platform, the platform shall have the obligation to properly keep the user information it collects, regularly check the security of the user information it collects, and ensure that the collected information is not harmed by illegal automatic jumping, that is, unfair competition between platforms or even criminal acts.
When there is cooperation between platforms, the duty of safe custody shall be extended to both parties. Finally, establish an industry supervision system for automatic jump behavior. Select and establish an Internet industry regulatory association, and independently and impartially review the reasonableness of the content of the user agreement through a third-party industry association, and inspect the platform's specific implementation of the content of the user agreement.
Rational application of the principle of technology neutrality. In unfair competition cases, the principle of technological neutrality is often used by the party to unfair competition to defend and prove the legality of its own technical acts.
Therefore, when hearing an automatic jump case, the court should pay attention to distinguishing the essence of the principle of technological neutrality, which can neither cause the abuse of the principle of technological neutrality in unfair competition cases, nor hinder the development of real automatic switching technology. Second, establish the criteria for determining the qualifications of plaintiffs and defendants in automatic jump cases.
Where unfair competition between internet platforms through automatic redirection infringes on user information security, and when a criminal suspect uses automatic redirection to commit a criminal act that harms the rights and interests of users, the victim is allowed to file a civil lawsuit or a civil lawsuit attached to a criminal case to remedy his or her own information security interests.
Give users the right to initiate civil litigation to obtain relief, and specifically implement the right to litigation, and increase the degree of judicial protection for personal information security.
Courts shall adhere to the principle of "triple authorization" when hearing cases in which the platform automatically switches.
This principle is that the Beijing Intellectual Property Court, in the trial of Sina v. Maimai, proposed that when a third party collects user information through software, it should follow the "triple authorization", i.e., "user authorization", "platform authorization" and "user authorization", and the "triple authorization" is a sequential and triple guarantee for the security of users' personal information.
Therefore, when hearing cases related to automatic redirects, the court should focus on reviewing the third-party platform's compliance with the "triple authorization" principle and whether each link of collection, processing and transmission of information has obtained the consent of the user.
epilogue
The Internet platform realizes the advantageous cooperation of different platforms in the fields of payment channels, location information, order transaction services and other fields through automatic web page jumping. Behind the frequent user information security problems caused by automatic redirects is the unclear characterization of automatic redirection behavior and the lack of platform rights regulation.
On the basis of clarifying the types of automatic jump behavior, comprehensive channels such as industry self-discipline, administrative supervision, and judicial remedies should be improved to strengthen the regulation of automatic jump behavior, so as to ensure the healthy and effective development of internet platforms.