— An Analysis Based on Six Typical Cases

 

 

Abstract: Electronic data is the most frequently used evidence  in the internet and information era. Electronic data has been applied  extensively and can be classified into many categories, which  determine that electronic data contains all kinds of fundamental rights. To clearly understand the fundamental rights contained in electronic data is an important precondition for respecting and protecting human rights in electronic data evidence obtainment. Property-type  electronic data contain property rights. Traditional investigation  measures such as seizure and freezing the property cannot be taken  to obtain valid evidence. To directly turn the digital currency into  cash and then seize the cash, will result in insufficient property rights  protection, and may violate other fundamental rights of criminal  suspects. The expansion of the object of the right to privacy and the change of the carrier on which the expansion depends in privacy-type electronic data, determine that the obtainment of the privacy-type electronic data evidence may result in intangible intervention  and secondary intervention in the right to privacy. Communication-type electronic data contains freedom of communication and the right  to communication secrecy. Investigative organs can collect this kind of electronic data through search, acquisition, remote investigation  and examination, and other means. However, according to the  existing institution design, the above-mentioned means may result  in insufficient protection of freedom of communication. Expression-type electronic data contains freedom of expression. If investigative  organs collect this kind of data, they may intervene in freedom of  the press though they do not intervene in narrowly defined freedom of expression. The basic principles that should be followed in the  electronic data evidence obtainment which intervenes in fundamental  rights include the doctrine of legal reservation, the writ system, the principle of proportionality, and illegal evidence exclusion.

 

Keywords: electronic data     fundamental rights     intervention in rights     legal principles

 

Electronic data belongs to one of the legal evidence types in the three major  procedural laws of China. Data is used as evidence in lawsuits and data incorporates  fundamental rights such as property rights, the right to privacy, and freedom of  communication. Electronic data is “the most frequently used evidence”¹ in the internet and information era. Data has been applied extensively and it can take many forms such as e-mails, text messages, social media posts and conversations, electronic transaction records, and computer programs. All the electronic data that can be used to prove case facts are electronic data evidence. Therefore, electronic data encompasses multiple types of fundamental rights. To clearly understand the fundamental rights contained in electronic data is an important precondition for respecting and protecting human rights in the obtainment of electronic data evidence. It is very significant to scientifically establish China’s electronic data evidence obtainment rules and examination rules. Because the scope and content of the fundamental rights of citizens are extensive and diversified, some fundamental rights such as the right to life, the right to education, and the right to work are usually not intervened in or violated by electronic data evidence obtainment activities, but some other fundamental rights such as property rights and the right to privacy may be intervened in or violated by electronic data evidence obtainment activities. Viewed from the angle of electronic data evidence obtainment practice and operations, the four fundamental rights, i.e., property rights, the right to privacy, freedom of communication, and freedom of expression, may be influenced by electronic data evidence obtainment activities. Therefore, this paper has mainly selected the four fundamental rights as the analysis objects. Because the criminal investigation is an investigation with the most intense conflicts between State power and the rights of citizens and investigative organs have the right to collect electronic data by taking some mandatory investigation measures such as search, seizure, and freezing, the paper takes the electronic data evidence obtainment for criminal cases as the research object and analyzes its intervention in citizens’ fundamental rights and its influence on citizens’ fundamental rights.

 

 

The property rights are the right of a citizen to own, use and dispose of his or her legal property. Property rights are defined in Article 13 of the Constitution of the People’s republic of China.² In modern countries under the rule of law, property rights, the right to life, and the right to freedom jointly constitute the three  most fundamental rights of citizens. They intensively embody the basic value and  dignity of an individual. Property rights set a strict limit on the exercising of State  power. Individuals can freely exercise their property rights to engage themselves in  production and operation activities and create wealth. With the constant development  of the economic society, the scope of property rights has become increasingly large  and many new types of property rights have emerged,³ including the digital property right. Before the internet and information society, people’s property rights were mainly attached to various tangible properties such as houses, land, vehicles, daily necessities, and production equipment. These tangible properties have a use value and exchange value. Physical property may become evidence for case fact-finding, i.e., physical evidence. For example, physical evidence includes various properties such as money, gold and silver jewelry, mobile phones, and vehicles stolen by a defendant in a theft case, and it includes the vehicle driven by a defendant in a traffic offense case. Physical evidence is the evidence in the form of tangible objects. Its proof value is usually contained in the external characteristics and physical attributes of tangible objects. The case information contained in the physical evidence is attached to its physical carriers and it cannot exist without its physical carriers. The physical evidence is both the evidence for case fact-finding and the bearer of the property rights of the investigated objects. When investigative organs collect physical evidence, they may intervene in or violate the property right contained in the evidence and hinder citizens from trading or using their properties. For example, if an investigative organ searched and seized some movable property-type physical evidence or closes some real estate-type physical evidence, the right holder cannot occupy, use or dispose of the movable property or real estate.

 

In the internet and information era, properties also exist in the form of data, such as digital currency, algorithm routines, and operating systems. In 2018, China’s digital economic output value reached 31.3 trillion yuan, it accounted for 34.8% of the GDP and the digital economy became a new engine for China’s economic growth.⁴ The  value core of data property is data and information. The essence of data property is its  function and utility, not its external form. On the one hand, the value created by data  services is gradually exceeding the value of physical objects. On the other hand, data  services once dominated hardware products in human history.⁵ Though data property  does not have materiality, tangibility, etc. of physical property, it has both a use-value  and an exchange value. The use-value and exchange value contained in data enable  data to become the object of property rights. Data property can become evidence  material for fact-finding, i.e., electronic data, in a litigation process. The evidence  information contained in electronic data is stored in data. Data itself is the carrier of  evidence information. The examples are digital currencies such as Bitcoin described here in Case 1.

 

 

In the case of pyramid selling activities organized and led by Chen et al, after the case occurred, the public security organ seized some digital currencies of the platform at the places of the three defendants Chen, Ding, and Peng, including 194,102,280.9 Bitcoins, 831,216,885.3 ETH, 1,420,499,924 LTC, 27,244,812.5 EOS, 74,055,265.6 DASH, 487,875,661.2 XRP, 6,050,447,261 DOGE, 79,183,439.67 BCH and 213,724,128.8 USDT, and some tools for the criminal purpose at the places of all the defendants including 32 mobile phones, 11 computers, 5 laptops, 2 mobile hard disks, 1 solid-state disk, 2 seed cipher cards and 2 USB drives.

 

In the case, the digital currencies such as bitcoin, ethereum, and litecoin seized by the investigative organ were related to the case and they were all cryptographic digital currencies based on the underlying technology — blockchain.⁷ Though  cryptographic digital currencies are not equivalent to physical currencies, they have  use values and exchange values and they can be exchanged for physical currencies.  The price of Bitcoin provided at the Bitcoin Information Website, on February 18, 2021, was USD 52,114.20/Bitcoin⁸. The  total amount of Bitcoins alone seized by the investigative organ was as much as USD  one billion. In this case, the value of the digital currencies was much higher than the  value of the property serving as storage media such as mobile phones and computers.  The investigative organ collected the currencies related to the case by seizing some  property. However, it is impossible to obtain valid evidence from digital currencies  only by seizing them due to the characteristics of digital currencies.

 

First, the investigative organ can’t obtain valid evidence from the digital currencies only by seizing them due to the virtual characteristics of the digital currencies. Traditional currencies exist in a physical form. An investigative organ can possess the physical currency through search and seizure, and the suspect loses the right to possess and dispose of the physical currency after the suspect is detained. However, the digital currency is, in essence, virtual data consisting of 0s and 1s, it does not have a physical form and it cannot be seized directly. In practice, some investigative organs may seize the digital currency operation devices of the suspect used in the case such as mobile phones and computers. However, the suspect does not lose the right to dispose of the digital currency if the investigative organ seizes only the digital currency operation devices of the suspect used in the case such as mobile phones and computers. If the suspect keeps the public key password and private key password for the suspect’s digital wallet, the suspect can use other mobile phones, computers, etc., install the digital wallet program in other mobile phones, computers, etc. and obtain the right to control the digital currency by using the keys.

 

Second, it is determined by the decentralization characteristics of digital currency  that the investigative organ cannot effectively obtain evidence from the digital  currency related to the case by taking measures to freeze the suspects’ accounts. With  a traditional currency deposit, an investigative organ can make a suspect lose the right  to control his property by freezing his accounts. For example, a bank can freeze a bank  card account. Freezing an account related to a case stops the property of the account  from changing so that the money of the account will be neither traded nor transferred.  Because a traditional bank card number is handled by a centralized organizational  structure, after the freeze information is transferred from a network node to the  central server, the money of the bank account related to the case will be stopped from  being saved, withdrawn, or traded at any transaction site of the network. However,  cryptocurrencies with decentralization characteristics such as Bitcoin, Ethereum, and  Litecoin are based on the underlying technology blockchain, they have adopted the  peer-to-peer (p2p) network structure, and the network is not supervised and managed  intensively by any independent third party.⁹ It is determined by the decentralization characteristics of cryptocurrencies such as Bitcoin, Ethereum, and Litecoin that circulation and transaction of digital currencies cannot be stopped by freezing some node.

 

Third, exchanging digital currencies for cash and then seizing the cash may violate not only the property right contained in the digital currencies but also the other rights of the suspect. In our judicial practice, some investigative organs exchange digital currencies for our traditional currency and seize the currency. For example, in a case, after Li and Zhang illegally obtained some data from a computer information system, the public security organ exchanged the digital currencies related to the case — 350.11 Bitcoins and 19,791.7 Litecoins — for renminbi and then seized the Chinese currency.¹⁰ The public key, the private key, and the asymmetric encryption  technology are used in digital currencies, however, the investigative organ must obtain  the passwords of the wallet, public key, and private key from the suspect to exchange  digital currencies for cash.

 

The investigative organ cannot exchange digital currencies for cash unless the suspect tells the investigative organ the passwords of the wallet, public key, and private key. Because it is the natural rationality of mankind to make a favorable choice, usually the suspect is not willing to tell others the passwords of the wallet, public key, and private key. If the investigative organ obtains the passwords of the public key and private key from the suspect by using violent means, intimidating the suspect, or using other means, the behavior of the investigative organ not only intervenes in the personal rights of the suspect but also violates the privilege against self-incrimination.

 

 

The right to privacy is the right to have a peaceful private life, private space, and private activities and information of a citizen unknown to other people. It means that the private life and information shall not be illegally spied on, invaded, or publicized by any others. Though the right to privacy is not explicitly defined in the Constitution of the People’s republic of China, the statement “Personal dignity  shall not be violated” specified in Article 38 of the Constitution contains the right to  privacy. The right to privacy is an important part of the right to dignity. If a citizen’s  private life sphere is not protected by the law, the legal subject cannot enjoy his/  her full personality right.¹¹ Chapter Six of Book IV Personality Rights of the Civil  Code of the People’s republic of China is exclusively about the right to privacy  and it distinguishes the right to privacy from personal information right. Personal  information is all kinds of information that can be used to identify a specific natural  person. It can be classified as secret information and non-secret information. The  former includes personal health, property status, etc. and the latter includes names,  dates of birth, phone numbers, identity numbers, etc. There is an intersection between  the right to privacy and personal information right. However, the scope of the former  is much larger than that of the latter. The secret information of personal information  belongs to the adjustment range of the right to privacy. If an investigative organ  collects secret personal information, it will intervene in the citizen’s right to privacy.  Non-secret personal information is public information that can be used to identify  a specific natural person. An investigative organ does not violate the citizen’s right  to privacy when it collects this kind of information. With the constant development  of social civilization and information technology, personal solitude and privacy  information are indispensable to every citizen. Compared with pure physical damage  such as body damage and property damage, the citizen’s mental damage caused by  violating the right to privacy is more severe.¹² Of course, the right to privacy has its  boundary and limit. To safeguard the public interest, a state has the right to intervene  in the personal right to privacy according to a statutory procedure.

 

The rapid development of the internet and information technology has not only expanded the object range of the right to privacy but also made it depend on the carrier and control the subject, in other words, made it change greatly. In the internet and information era, AI, big data, blockchain, cloud storage, and other technologies have brought private personal information in many new forms, such as computer login logs, web browser histories, and electronic transaction records, which have expanded the contents and range of privacy information. A great deal of privacy-type electronic data has appeared in criminal cases. Investigative organs may violate citizens’ rights to privacy when they collect electronic data.

 

 

In this case, Zhang secretly installed a GPS location indicator in Gu’s official car, he monitored the tracks of the car in real-time and he obtained the information on the daily running routes and parking positions of the car. After a court tried the case, it believed that Zhang had violated some State regulations and illegally obtained and sold a citizen’s personal information, the circumstances were serious, and his behavior had violated the citizen’s right to privacy, disturbed the social order, and constituted an invasion of a citizen’s personal information.

 

 

To try this drug trafficking case, the investigative organ acquired the GPS positioning information of the Volkswagen Jetta car related to the case from a car rental company and obtained the running tracks produced by the Volkswagen Jetta car in November 2017. After the court tried the case, the court used the GPS positioning information as part of the basis for its final decision.

 

The two above-mentioned cases have involved GPS positioning information. In Case 2, an individual illegally collected another person’s GPS positioning information, the court believed that he had violated a citizen’s right to privacy and his behavior had constituted an invasion of a citizen’s personal information. In Case 3, the investigative organ easily acquired the GPS positioning information of a citizen’s car through “an acquisition procedure”. The acquisition is different from search or any other mandatory investigative means. Whether it is applicable can be decided by the investigator and it is not necessary to have it approved. Because the investigative organ acquired the GPS positioning information of the car to find the facts about the crime of drug trafficking, its purpose was legitimate. However, the corresponding procedure control was not available. The citizen’s right to privacy included in the GPS positioning information could not be protected effectively. On the one hand, if an individual illegally collects the GPS positioning information of another person, the individual violates that person’s right to privacy and he or she will be punished according to the relevant provisions. On the other hand, when the GPS positioning information containing the citizen’s right to privacy is acquired by an investigative organ, the right to privacy cannot be protected in the acquisition procedure. This means that enough importance has not been attached to the protection of the right to privacy in electronic data evidence obtainment. In modern society, the right to privacy occupies an important position. Compared with pure physical damage such as body damage and property damage, the citizen’s mental damage caused by violating the right to privacy is more severe. Therefore, a legitimate procedure shall be established to protect the citizen’s right to privacy in electronic data evidence obtainment. The intervention in the right to privacy in electronic data evidence obtainment has the following characteristics:

 

First, the expansion of the object of the right to privacy and the change of the carrier on which the expansion depends in electronic data, determine that the intervention of electronic data evidence obtainment in the right to privacy can be carried out without the help of some mandatory tangible force. In the internet and information era, in big data analyses, people may have some low awareness of privacy regarding fragmented information in which they usually have no expectation of privacy or very low expectation of privacy. For example, people do not have a reasonable expectation of privacy in the positions, moving directions, etc. of their vehicles on roads because they are exposed to the public space. However, the long- term GPS location track of a car can reflect the privacy information of someone if the track information is continuously collected. Viewing from the angle of the carrier on which the right to privacy depends, traditional privacy activities mainly exist in residences, vehicles, and other physical objects, and traditional privacy information is mainly stored in diaries, paper account books, medical history books, and other tangible objects. In the internet and information era, people not only carry out a lot of privacy activities, but also learn, work, entertain and do other things online, which indicates that the modern right to privacy is not only contained in physical objects such as residences, vehicles, and diaries but also contained in electronic data such as electronic files, login logs, electronic transaction records, and digital videos. Viewed from the methods of the intervention in the right to privacy, to obtain traditional personal privacy information, the investigative organ can directly resort to some mandatory tangible force to investigate some case and obtain evidence because the traditional personal privacy information is mainly contained in tangible objects such as houses, vehicles and diaries. For example, if a respondent refuses to cooperate with an investigative organ when the house of the respondent is to be searched, the investigative organ can break into the house. An investigative organ cannot collect private information from cyberspace and obtain evidence from the privacy information by directly resorting to some tangible force. It should often resort to the corresponding information technology means such as decryption technology, backdoors, and data analyses. The national monitoring and control or wiretapping are no longer centered in the protection and debate of the right to privacy. Information technology has had an unprecedented impact on the protection of the right to privacy.¹⁵ Though the  mandatory tangible force is not resorted to in electronic data evidence obtainment, it  does not mean that electronic data evidence obtainment does not intervene in citizens’  right to privacy.

 

Second, the privacy information contained in electronic data may be “self- occupied” and/or “occupied by a third party”, which indicates that electronic data evidence can be obtained in multiple ways. Viewing from the occupation and control subject of privacy information, traditional privacy information exists in physical objects such as residences, vehicles, and diaries, these physical properties are usually controlled by the subjects of the right, and if they are controlled by third party subjects, the privacy information will lose secrecy. Therefore, as for traditional privacy information, the self-control by the subject of the right is the principle and third- party control is the exception. In the Internet and information era, privacy information contained in electronic data such as electronic files, login logs, electronic transaction records, and digital videos is stored in not only the electronic devices of the subject of the right such as mobile phones, computers, and iPads of the subject of the right but also the servers and storages of the third parties such as network operators and Internet service providers. Therefore, in the Internet and information era, “self- occupation” and “third party occupation” of privacy information are both normal. Though third parties such as network operators and Internet service providers occupy personal privacy information, it does not mean that they can use the information at will or publicize personal privacy information. Data encryption technology can be used to technically guarantee exclusive use of private information by the subject of the right. Because self-control of traditional privacy information by the subject of the right is the principle and the third-party control is the exception, the intervention of physical object evidence obtainment in the right to privacy is carried out based on physical properties of the suspect such as vehicles and residences of the suspect. In the internet and information era, “self-occupation” and “third party occupation” of privacy information are both normal. Investigative organs can collect electronic data by searching physical properties of the suspect such as computers and mobile phones of the suspect or collect or acquire electronic data related to criminal cases from third party subjects such as network operators and Internet service providers.¹⁶ In Case 3,  the investigative organ acquired the GPS positioning information from a car rental  company. The third-party subjects such as network operators and internet service  providers have excellent information technology capabilities. If they are willing to  cooperate with investigative organs in the investigation and evidence obtainment of  investigative organs, the difficulty and cost of electronic data evidence obtainment  will be greatly reduced. In addition, usually, the suspect is not informed of the  evidence obtainment and investigative organs are more willing to use this electronic  data evidence obtainment method. Therefore, acquiring electronic data from third-  party subjects such as network operators and internet service providers will become a  normal intervention in the right to privacy in the internet and information era.

 

Third, as for electronic data stored in physical space such as vehicles and houses, the secondary intervention in the right to privacy may be carried out in electronic data evidence obtainment. Traditional personal privacy information mainly exists in tangible physical objects such as houses, vehicles, and diaries, and tranquility and secret information of citizens’ private life has been embedded in these physical objects. When investigative organs search vehicles and residences, they intervene in the privacy interest contained in the vehicles and residences. In the internet and information era, privacy information-type electronic data are not mainly attached to physical properties such as residences and vehicles, but they are mainly stored in electronic devices such as mobile phones, computers, and tablets. When investigative  organs search vehicles and residences, they can obtain the above-mention physical  electronic devices, but they cannot directly acquire the electronic data stored in them.  To obtain the electronic data stored in the devices, the search needs to be carried out  further, which may cause a secondary intervention in the right to privacy through the  obtainment of electronic data evidence. The Criminal Division of the US Department  of Justice requires that an investigative organ must obtain a writ before it enters and  searches a residence and it must obtain another writ before it examines electronic  data in mobile phones.¹⁷ The existing electronic data evidence obtainment system of China has not paid enough attention to the secondary intervention in the right to privacy and investigators can search mobile phones and computers of respondents for electronic data at will after they search the residences of respondents, which results in insufficient protection of the right to privacy. To strengthen the protection of the citizen’s right to privacy, China may consider the establishment of an examination and approval system for searching electronic devices such as mobile phones and computers for electronic data.

 

 

Freedom of communication is the right of citizens to communicate according to their wishes through letters, telephones, telegrams, or other means without being disturbed by any others. Communication is a necessary means for citizens to participate in social life, communicate and exchange information, and an indispensable fundamental freedom of citizens. People can express their viewpoints, convey their ideas and exchange their feelings.¹⁸ In China, citizens’ freedom of communication and  citizens’ right to communication privacy are defined as fundamental rights in Article  40 of the Constitution of the People’s republic of China.¹⁹ Before the internet and  information era, people mainly exercised their freedom of communication through  letters, telephone calls, telegrams, and other means. When letters are used to exercise  freedom of communication, the communication information is stored in what is  written on the paper and this is sealed in envelopes by the letter senders. Although the  postal department has possession of the letters when the letters are transported and  delivered by the postal department, the contents of the letters cannot be known if the  letters are not torn open. The confidentiality of the letter contents is achieved in such a  way when letters are transported and delivered. If a postal clerk privately tears a letter  open, the corresponding trace that has been kept of the letter will be noticed by the  sender or addressee and then the sender or addressee can solve the problem through a legal procedure. Because the written information is attached to the letter, the postal department can occupy and control mail when the mail is transported and delivered, but the postal department will no longer occupy and control the mail after delivery of the mail is completed. The occupation and control of the mail is then transferred to the addressees. Therefore, investigative organs mainly adopt the following two methods to obtain paper mail evidence: First, when letters are transported and delivered by the postal department, investigative organs can collect the mail related to relevant cases with the help of the postal department. This is done mainly according to the legal procedures on mail examination and seizure.²⁰ If the legal conditions and procedures  are satisfied, the postal department must cooperate with investigative organs and  examine the mail. Second, after the mail is delivered, the occupation and control of  the mail is transferred to the addressees. Then investigative organs must acquire the  letters related to the relevant cases through search and seizure. In the judicial practice,  investigative organs should decide to adopt which method to collect the letters related  to the relevant cases according to the mailing and delivery states of the paper letters.

 

In the internet and information era, communication through paper letters is no  longer people’s main communication form. People communicate mainly through  the internet and social media, using as e-mail, and messaging apps such as QQ and  WeChat. This has made a breakthrough in the traditional sending, delivery, and  reception model of communication expanded the connotation and denotation of  citizens’ freedom and privacy of communication and made the communication of  the internet and information era assume a new pattern.²¹ Viewed from the angle of the communication form, digital communication including e-mails, QQ and WeChat has substituted for traditional paper letters and the substitution has improved the technicality, efficiency and interaction of the communication of the internet and information era. Viewed from the angle of the communication content, digital communication can be used to transmit words, images, audio, videos, electronic files, etc., while paper letters can only be used to exchange text messages. Viewed from the angle of communication, paper letters can only be used to carry out one- to-one information exchange, and multiple paper letters must be used to carry out one-to-many information exchange; the digital communication of the internet and information era can be used to carry out both one-to-one communication and one-to- many communication through WeChat groups, QQ groups, videoconferences, etc.

 

Though the communication carrier and communication mode change greatly in the internet and information era, communication-type electronic data still contains privacy of communication. When the internet and information technology expands both people’s implementation modes for their freedom of communication and content of their freedom of communication, it also causes the means and mode of State intervention in citizens’ freedom of communication to change in a criminal investigation.²² Because communication-type electronic data such as e-mails, WeChat,  and short text messages are simultaneously stored in the electronic device of the  sender, the e-mail server, and the electronic device of the receiver when they are  transmitted, investigative organs can collect communication-type electronic data  through multiple modes such as sampling search, acquisition, and remote survey and  examination. When these investigative measures are taken to collect communication-  type electronic data, they will respectively cause different insufficient protection of  citizens’ freedom of communication.

 

First, obtaining communication-type electronic data from searched and seized  mobile phones, computers, etc. may result in insufficient procedural guarantees for  independence of freedom of communication. In the judicial practice, investigative  organs first search and seize the electronic devices related to relevant cases such as  mobile phones and computers, and then obtain relevant electronic data such as e-mails,  WeChat, and short text messages through some technical means. For example, Zhu et  al smuggled ordinary goods²³, an investigative organ seized their electronic devices such as computers, mobile phones, and USB drives and then the investigative organ authorized an identification agency to extract e-mails, phone text messages, QQ chat records, etc. from the electronic devices; the defender proposed that the electronic data belonged to illegal evidence and they should be excluded; after the court tried the case, it believed that the seizure, acquisition and examination procedures of these electronic data were legitimate, the extracted files were related to the case and they should be used as evidence. This “search, seizure + data extraction” model can only have the search and seizure of electronic devices such as mobile phones and computers adjusted according to the Criminal Procedure Law of the People’s republic  of China, but it cannot regulate future electronic data extraction behaviors. Then  freedom of communication contained in electronic data such as e-mails, text messages,  and QQ chat records can be protected only by attaching it to the ownership of its  original storage media, and no procedural guarantee for independence of freedom  of communication can be obtained. To highlight the guarantee for the fundamental  rights contained in communication-type electronic data, it should be considered that  some corresponding approval procedures should be established to regulate future  communication-type electronic data acquisition behaviors in the “search, seizure +  data extraction” model.

 

Second, because there are not enough approval procedures for communication- type electronic data acquisition procedures, the communication-type electronic data acquisition procedures cannot effectively protect citizens’ freedom of communication. Monitoring e-mails or acquiring e-mails related to relevant cases through the cooperation of third-party subjects such as network communications service providers is a relatively common communication-type electronic data evidence obtainment method. For example, as one of the most mysterious intelligence organizations in  the world, the E-mail Monitoring Center of British Military Intelligence Section  5 monitors all incoming and outgoing e-mails of Britain, and all internet service  providers must connect their network with the monitoring devices of the monitoring  center so that the center can monitor all the e-mails.²⁴ This evidence obtainment  method is related to the technical investigation measures for communication-  type electronic data and its application should conform to the legal conditions and  procedures for technical investigation measures specified in the Criminal Procedure  Law. Investigative organs can acquire the communication-type electronic data  collected from internet operators and internet service providers. The requirements  for the acquisition procedure are the same as those for the paper mail acquisition  procedure. For example, in the case in which Xu was tried for smuggling ordinary  goods,²⁵ an investigative organ acquired the contents of Xu’s incoming and outgoing e-mails at his e-mail address and some electronic data such as contracts and invoices in the attachments from NetEase, and the court weighed this electronic data as part of the evidence for its conclusion of the case. However, the Criminal Procedure Law of the People’s republic of China and the relevant judicial interpretations have not defined any acquisition approval procedures, which means that investigators can decide whether the relevant acquisition is applicable by themselves according to their work requirements. Obviously, this does not help protect citizens’ fundamental rights contained in communication-type electronic data.

 

Third, freedom of communication cannot be effectively protected in the online acquisition and the remote online survey and examination of communication- type electronic data because they are not restricted by enough procedures. In the judicial practice, investigators can collect communication-type electronic data online by themselves by using corresponding Internet and information technology and evidence obtainment devices, and the activities of the investigators involve the online acquisition and the remote online survey and examination of communication-type electronic data. For example, Yu illegally absorbed public deposits, an investigative organ collected e-mails related to the case from multiple e-mail addresses through remote online survey and examination, and the court used these e-mails as some of the basis for its conclusion.²⁶ However, China’s current judicial interpretation and  normative documents mainly define online acquisition and remote online survey  and examination as arbitrary investigation.²⁷ Because the investigative behavior  adjustment focus of the Criminal Procedure Law is a mandatory investigation, and  arbitrary investigation is not regulated by sufficient procedures, though this definition helps investigative organs efficiently collect electronic data related to relevant cases, it cannot effectively protect the freedom and privacy of communication.

 

 

Freedom of expression is a citizens’ right to express their thoughts and viewpoints through languages, behaviors, or other means.²⁸ Freedom of expression can be  exercised in multiple ways, that is, people’s thoughts and viewpoints can be directly  expressed in words, either in oral or written form. People can express their thoughts  and viewpoints through broadcasts, newspapers, magazines, etc. if it conforms to  the legal provisions. With the constant development of the internet and information  technology, the ways to exercise freedom of expression will become increasingly  diversified. Before the internet and information era, individuals mainly expressed  their thoughts and viewpoints through books, newspapers, magazines, broadcasts,  etc. In the internet and information era, people mainly exercise their freedom of  expression through web pages, blogs, WeChat, WeChat Moments, etc. There is also a  limit to freedom of expression. Article 51 of the Constitution of the People’s republic  of China defines a reasonable limit for this fundamental right,²⁹ i.e., citizens of the  People’s Republic of China, in exercising their freedoms and rights, may not infringe  upon the interests of the State, of society or the collective, or upon the lawful freedoms  and rights of other citizens. Because the speed and scope of network information  spread are respectively fast and large, when people exercise freedom of expression  through networks, they can make their thoughts and viewpoints spread faster and  wider. However, the negative effects brought by the faster and wider spread become  more serious and the social harm caused by improper expression such as defamation  and obscenity become more severe. Though administrative organs or judicial organs  can stop improper expression by issuing bans, the bans may violate citizens’ freedom  of expression if this kind of bans is not properly used. However, administrative organs  or judicial organs need to collect relevant evidence and find facts of cases before they  issue any bans. Not all expression-type electronic data evidence obtainment intervenes  in citizens’ freedom of expression.

 

 

Expression is, in essence, to let others know the expresser’s viewpoints and thoughts through language, behavior, and other means. In a criminal case in which a defendant was tried for improperly exercising freedom of expression by using the internet, expression-type electronic data containing the viewpoints and thoughts of the expresser were also important evidence in the case. Usually, expression-type electronic data evidence obtainment does not directly hinder or intervene in citizens’

 

 

In the criminal case in which Yang was tried was for picking a quarrel and making trouble, Yang posted some information threatening a victim Wang on WeChat Moments and QQ. An investigative organ acquired the above-mentioned information data from WeChat and QQ and used the data as evidence. In the court, Yang argued that the information he posted on WeChat Moments and QQ was in the range of freedom of expression. After the court tried the case, it did not accept the defense opinion of the defendant and used the above-mentioned data as some of the basis for its conclusion of the case.

 

In this case, Yang argued that the information he posted on Moments and QQ was in the range of freedom of expression. An expression that damages the interests of others or infringes upon the interests of the State such as offensive expression, provocative expression, defamatory expression, inflammatory expression, and terrorist expression does not belong to the protection range of freedom of expression.³¹ The  threatening expression Yang posted in the case was not any legitimate expression and  it should not be protected by freedom of expression. To find out whether the electronic  data evidence obtainment infringed upon freedom of expression, we can assume  that Yang’s defense opinion held true, that is, the information he posted on Moments  and QQ was in the range of freedom of expression. Then the investigative organ’s  investigation and evidence obtainment behavior of electronic data did not infringe upon  the citizen’s freedom of expression. This is mainly based on the following reasons:

 

First, when the investigative organ collected the expression-type electronic data, usually the expression of the respondent had been completed and the electronic data investigation and evidence obtainment behavior itself did not hinder the expression of the respondent. In the sphere of freedom of expression, before the subject of freedom of expression posts any information, the State cannot influence freedom of expression at all.³² Before an owner of freedom of expression posts any information,  the viewpoints, and contents the owner is going to express belong to the ideological  sphere. The law can only regulate people’s behavior. It cannot regulate or intervene  in people’s thoughts. In the case in which Yang was tried for picking a quarrel and  making trouble when the investigative organ collected the expression Yang posted on  WeChat Moments and QQ, Yang had completed his expression, and the viewpoints  and thoughts Yang had expressed had spread through WeChat Moments and QQ.

 

Second, the posted expression itself is the thoughts and viewpoints that the poster wants the public to know, it can be looked up, browsed, downloaded, and copied by any non-specific internet user and investigators can collect expression-type electronic data from web pages, blogs, Moments, posts, etc. without using any compulsory means. In the case in which Yang was tried for picking a quarrel and making trouble, Yang posted his expression on WeChat Moments and QQ to let his friends and his QQ visitors know the above-mentioned expression. When investigators collect the above-mentioned expression-type electronic data, they do it through multiple non- mandatory evidence obtainment modes or channels: First, the victim can provide the above-mentioned information displayed on WeChat Moments and some Qzone for the investigative organ, and it is not necessary for the investigative organ to take any compulsory measure; second, the investigative organ can visit Yang’s Qzone and collect electronic data related to the case through remote online survey and examination. All netizens can visit open Qzone. Therefore, the investigative organ can browse, download or copy the expression information Yang openly published in some Qzone without taking any compulsory measures.

 

Third, the electronic data evidence obtainment behavior of the investigative organ does not directly hinder freedom of expression. In the criminal case related to freedom of expression, such as a criminal case involving insult or defamation, though the final conviction and sentencing of the court deter and hinders the defendant from posting improper expression again, the electronic data evidence obtainment behavior of the investigative organ does not hinder the defendant from expressing freely. The main intervention of the State organ in the citizen’s freedom of expression is expression examination. The State organ decides whether some expression should be allowed according to its examination results. When an investigative organ collects expression- type electronic data, though it examines the contents contained the data, it focuses on determining whether the electronic data to be collected is related to the case and deciding whether the electronic data should be collected according to its examination results, instead of deciding whether the free expression should be allowed. Therefore, “examination” of the expression-type electronic data evidence obtainment is, in essence, different from “expression examination” and it does not hinder expression.

 

 

Freedom of expression, in the broad sense, includes freedom of the press. As part of the right to the freedom of expression, freedom of the press has its own characteristics, which determines that expression-type electronic data evidence obtainment may intervene in freedom of the press. Freedom of the press may be intervened in before publication. Because freedom of the press exists not only in the information obtainment and spread stage but also in the intermediate stage including editing, publication, and printing, the State may exert influence on freedom of the press in the above-mentioned stages.³³ Freedom of the press protects not only the  thoughts and viewpoints that a publisher is going to express but also the material  and technology base on which thoughts and viewpoints are published.³⁴ Therefore,  publication-type electronic data collection and evidence obtainment may intervene in freedom of the press.

 

 

In the case in which Fu was tried for illegal business operations, Fu sold the book The History of Brainwashing online, an investigative organ searched and seized  over 1,000 copies of the book and then the book The History of Brainwashing was  identified as an illegal publication by the press and publication department. At the  court, Fu argued that the publication of the book belonged to freedom of the press.  After the court tried the case, it did not accept the defense opinion of the defendant,  but it used these books as a base for concluding the case and convicted the defendant  of an illegal business operations crime.

 

 

In the case in which Shenzhen Qvod Technology Co., Ltd. was tried for spreading obscene goods for profit, the Haidian District Culture Committee of Beijing searched and seized four servers related to the case, and extracted 29,841 video files from the servers. 21,251 of the above-mentioned video files were identified as obscene videos. The court used these videos as a base for concluding the case after it tried the case.

 

In the above two cases, because the book and the videos were respectively an illegal publication and obscene videos, publishing the book and spreading the videos were not within the protection range of freedom of the press. To explore the relation between electronic data evidence obtainment and freedom of the press, we assume that publishing the book and spreading the videos are within the protection range of freedom of the press. In practice, this assumption is reasonable because the investigative organ cannot decide whether the book and the videos are respectively an illegal book and obscene videos before the book and videos are identified. For example, in Case 6, most of the videos were identified as obscene videos and a small part of the videos were not identified as obscene videos. If the above book and video files were within the protection range of freedom of the press, the book and video search and seizure of the investigative organ (the administrative organ) may intervene in freedom of the press. An investigative organ may intervene in freedom of the press when a publication is being edited, produced, and printed. For example, an investigative organ can search and seize printing equipment or video production equipment when a publication is being printed or produced. An investigative organ can also intervene in freedom of the press when a publication is spreading. For example, an investigative organ can search and seize a publication when the publication is spreading. In the above two cases, the investigative organs (the administrative organs) both intervened in freedom of the press by searching and seizing publications. The fundamental goal of the State’s limit on freedom of the press is to hinder the public from receiving the publications, instead of hindering information from being published.³⁷ In case 5, the investigative organ stopped these publications from  continuously flowing into the society and spreading by searching and seizing over  1,000 copies of the book The history of Brainwashing. If the publications are paper  publications, the published information should have been attached to the paper carrier,  i.e., paper books and the paper books are related to the citizen’s property right. In the  case of Germany’s Der Spiegel, when the plaintiff initiated constitutional litigation  against the search behavior, the plaintiff alleged that the editorial office search  behavior of the police violated freedom of the press protected by Article 5 of the  Fundamental Law, freedom of residence protected by Article 13 of the Fundamental  Law and the private property right protected by Article 14 of the Fundamental Law,  and the plaintiff applied for temporary protective measures. The Federal Constitutional  Court of Germany believed that searching and closing down this type of evidence  naturally intervened in the citizen’s fundamental rights, but they were indispensable  means to prosecute criminal cases, and the search behavior of the investigators did not  violate Germany’s Constitution if the investigators obtained a search order before the  court heard the case.³⁸ Because paper publications simultaneously contain the citizen’s  freedom of the press and property right and the paper publications are usually in the  residence, office, etc. of the defendant, the paper publication search and seizure may  intervene in multiple fundamental rights such as freedom of the press, property rights  and rights of residence.

 

In Case 6, after the law enforcement agency sealed up and seized the digital  videos and their storage media related to the case, it stopped these videos and  media from flowing into society and spreading. Then it might intervene in the  citizen’s freedom of the press contained in the electronic publications. With virtual  characteristics and replicable characteristics, electronic data do not exist if they are  not attached to storage media. Storage media of electronic data can be the original  storage media of the data or any other media. This has determined that there are two  models for electronic data evidence obtainment: “overall collection” and “separate  acquisition”.³⁹ The “overall collection” mode of electronic data is that the investigative organ collects both the electronic data and their original storage media. When the original storage media are collected, the electronic data stored in the media are also collected. The “separate acquisition” model of electronic data is that the investigative organ collects only the electronic data stored in the original storage media, copies the electronic data to other storage media, and does not collect the original storage media of the electronic data. In this case, the law enforcement agency adopted the “overall collection” model of electronic data, seized 4 servers, and extracted obscene video files from them. Under the circumstances, the electronic data evidence obtainment behavior of the investigative organ might intervene in the citizen’s property right of the original storage media to which the electronic data was attached as well as the citizen’s freedom of the press.

 

 

Electronic data contains the fundamental rights of citizens such as property rights, the right to privacy, freedom of communication, and freedom of expression. The intervention of electronic data evidence obtainment behavior in property rights, the right to privacy, and freedom of communication should belong to the mandatory investigation scope. The basic requirements such as the legal reservation principle, writ doctrine, and the principle of proportionality should be followed in the institutional design and practical operations of electronic data evidence obtainment behavior.

 

Viewing from the legal reservation doctrine angle, the new investigative behaviors derived from the electronic data evidence obtainment for criminal cases such as remote online survey and examination, online network extraction, and electronic data freezing were mainly created according to the relevant judicial interpretation and department regulations such as the Provisions on Several Issues Concerning Electronic Data Collection, Extraction, Examination and Judgment for Criminal Case Handling (hereinafter referred to as the Electronic Data Provisions) and the rules of Public Security organs on Electronic Data Evidence obtainment for Criminal Case Handling (hereinafter referred to as the Electronic Data Evidence obtainment rules). The electronic data evidence obtainment behavior created according to the relevant judicial interpretation and department regulations may intervene in fundamental rights and its legal level is relatively low. The new investigation and evidence obtainment behavior that intervenes in fundamental rights should be included in the adjustment scope of the Criminal Procedure Law of the People’s republic of China. The  intervention of electronic data evidence obtainment in fundamental rights can become  legitimate only after it is authorized by law.

 

Viewed from the angle of the principle of proportionality, the electronic data  evidence obtainment means or method with the lowest degree of intervention in  fundamental rights should be adopted to collect electronic data, and any excessive  infringement behavior with an ill-matched combination of a means and a purpose  should be prohibited. The “original storage medium rules”, i.e., the rules that original  storage media should be seized for electronic data evidence obtainment if possible,  are specified in the Electronic Data Provisions and the Electronic Data Evidence  obtainment rules.⁴⁰ This infringes not only fundamental rights contained in the electronic data but also ownership rights of the original storage media. If the integrity of the collected and acquired electronic data can be ensured, it is unnecessary to the original storage media of electronic data. In future legislation, it should be considered whether the application scope of the original storage medium rules should be restricted.

 

Viewed from the angle of the writ system, it is specified in the Electronic Data Provisions and the Electronic Data Evidence obtainment rules that application of investigative measures such as remote online survey and examination, online extraction, and electronic data acquisition can be decided by the person who handles the case or the department of the person who handles the case according to the specific characteristics of the case without any approval procedures, which weakens the protection of the fundamental rights contained in the electronic data. The approval procedures required by the writ system can not only check whether some intervention in rights is justified in a case, but also let the person who handles the case be specially authorized by giving a writ. At present, though there is no compulsory investigation and examination system for search, technical investigation, etc., compulsory investigation measures must be approved before they are applied to searches, technical investigations, etc. In the future, referring to the search system, the new investigative measures that apply to intervention in fundamental rights in electronic data evidence obtainment should be checked and approved by the leader of the investigative organ at the county level or above.

 

Viewed from the angle of the relief of fundamental rights, if any of a citizen’s fundamental rights are violated in illegal evidence obtainment, the relevant relief can be offered by excluding the illegal evidence. Though the exclusionary rules of illegally obtained evidence are defined in Article 56 of the Criminal Procedure Law of the People’s republic of China,⁴¹ electronic data is not included in the rules. Because  electronic data contain citizens’ fundamental rights such as the property right, the right  to privacy, and freedom of communication, illegal electronic data evidence obtainment  behaviors violate citizens’ fundamental rights. Therefore, electronic data should  be included in the application range of the exclusionary rules of illegally obtained  evidence. Procedural sanctions should be imposed on illegal electronic data evidence  obtainment behaviors that severely violate citizens’ fundamental rights to realize the  relief after the violation of citizens’ fundamental rights.

 

(Translated by LIU Zhao)

 

* XIE Dengke ( 谢登科 ), Professor and Doctoral supervisor of the Law School of Jilin University, Researcher  of the Theoretic Law Research Center of Jilin University, Rresearcher of the Judicial Data Application  Research Center. The paper is a phased result of both the project of China Human Right Research Society  “Research on Human Right Protection in Electronic Data Evidence Obtainment” (CSHRS2020-17YB) and the  key project of the National Social Science Fund of China “Research on the Criminal Evidence Theory System  with Chinese Characteristics” (18ZDA139). 

 

1. Liu Pinxin, “Basic Theory of Electronic Evidence”, Journal of national Prosecutors College 1 (2017): 151-159.

 

2. Article 13 of the Constitution of the People’s Republic of China: “Citizens’ lawful private property is  inviolable. The State, in accordance with law, protects the rights of citizens to private property and to its  inheritance. The State may, in the public interest and in accordance with law, expropriate or requisition private  property for its use and make compensation for the private property expropriated or requisitioned.” 

 

3. Hu Jinguang and Han Dayuan, Constitution of the People’s republic of China (Beijing: Law Press, 2016), 252-258.

 

4. He Yuan, Data Law (Beijing: Peking University Press, 2020), 3.

 

5. Gao Yandong and Li Shihan, “Extensive Interpretation of Property in Property Crime of the Digital Era: Take Data Services for Example”, Journal of Jilin University (Social Science Edition) 5 (2020): 103-115. 

 

6. Criminal Justice Termination No. 488 Ruling of a Criminal Action, Jiangsu Document No. 9 (2020) of  Yancheng City Intermediate People’s Court, Jiangsu Province, for details. The case was retrieved from Jufa  Case Website.

 

7. Zhao Gang and Zhang Jian, Digital Trust: Essence and Application of Blockchain (Beijing: the Publishing House of Electronics Industry, 2020), 59-60.

 

8. The relevant data were from the Bitcoin Information Website.

 

9. Gao Hang, Yu Xueli and Wang Maolu, Blockchain and Artificial Intelligence: new Era of Digital Economy (Beijing: Publishing House of Electronic Industry, 2018), 23-28.

 

10. Criminal Justice Termination No. 23 Ruling of a Criminal Action, Jiangsu Document No. 9 (2020) of Fuxin  City Intermediate People’s Court for details. The case was retrieved from Jufa Case Website. 

 

 

11. Hu Jinguang and Han Dayuan, Constitution of the People’s republic of China (Beijing: Law Press, 2016), 246-247.

 

12. Louis D. Brandeis et al., The right to Privacy, trans. Huan Shengkui (Beijing: Peking University Press, 2004), 3-7. 

 

13. Criminal Justice Termination No. 713 Ruling of a Criminal Action, Shandong Document No. 02 (2017) of  Qingdao City Intermediate People’s Court, Shandong Province, for details. The case was retrieved from Jufa  Case Website.

 

14. Criminal Justice Termination No. 31 Ruling of a Criminal Action, Hunan Document No. 09 (2018) of  Yiyang City Intermediate People’s Court, Hunan Province, for details. The case was retrieved from Jufa Case  Website. 

 

15. John Parker, Total Surveillance: Investigating the Big Brother World of E-Spies, Eavesdroppers and CCTV, trans. Guan Lishen (Beijing: Gold Wall Press, 2016), 8. 

 

16. Xie Dengke, “On Electronic Data Acquisition Right of Investigative Organizations and Its Procedure Control — Take Article 32 of Data Security Law (Draft) as the Viewing Angle”, global Law review 1 (2021): 52-67. 

 

17. Chen Yongsheng, “Legal Regulations on Search and Seizure of Electronic Data”, Modern Law 5 (2014): 111-127.

 

18. Hu Jinguang and Han Dayuan, Constitution of the People’s republic of China (Beijing: Law Press, 2016), 248-249.

 

19. Article 40 of the Constitution of the People’s Republic of China: “Freedom and privacy of communication  of citizens of the People’s Republic of China are protected by law. No organization or individual may, on any  ground, infringe upon citizens’ freedom and privacy of communication, except in cases where, to meet the  needs of state security or of criminal investigation, public security or procuratorial organs are permitted to  censor communications in accordance with the procedures prescribed by law.” 

 

20. Article 36 of the Postal Law of the People’s republic of China: “Due to the necessity of the state security  or the investigation of a criminal offence, a public security organ, a state security organ, or a procuratorial  organ can examine and seize relevant mails and ask the relevant postal enterprise to provide information on  the postal service use by the relevant users. The postal enterprise and relevant organizations should cooperate  and keep the relevant situation secret.”

 

21. Shuai Yinan, “Constitutional Guarantee of New Patterns of Fundamental Rights — Take Internet-Era Citizens’ Freedom of Communication as an Example”, Law review 6 (2018): 116-125. 

 

22. Xie Dengke, “On Right Protection in Electronic Data Collection”, Lanzhou Academic Journal 12 (2020): 33-45.

 

23. Guangdong Criminal Justice Termination No. 347 Ruling of a Criminal Action (2017) of Guangdong Higher  People’s Court, Hunan Province, for details. The case was retrieved from Jufa Case Website. 

 

24. Hu Jinguang and Han Dayuan, Constitution of the People’s Republic of China (Beijing: Law Press, 2016),  260.

 

25. Criminal Justice Termination No. 41 Ruling of a Criminal Action, Shandong Document No. 02 (2015) of  Shandong Higher People’s Court for details. The case was retrieved from Jufa Case Website.

 

26. Criminal Justice Beginning No. 139 Ruling of a Criminal Action, Shandong Document No. 1526 (2017)  of Gaotang County People’s Court, Shandong Province, for details. The case was retrieved from Jufa Case  Website.

 

27. Xie Dengke, “Reflection and Reconstruction of Remote Online Survey and Examination Rules of Electronic

Data”, Chinese Journal of Criminal Law 1 (2020): 58-68. 

 

28. Hu Jinguang and Han Dayuan, Constitution of the People’s republic of China, (Beijing: Law Press, 2016), 205.

 

29. Article 51 of the Constitution of the People’s Republic of China: “Citizens of the People’s Republic of China,  in exercising their freedoms and rights, may not infringe upon the interests of the State, of society or of the  collective, or upon the lawful freedoms and rights of other citizens.” 

 

30. Criminal Justice Termination No. 2020 Ruling of a Criminal Action, Shanghai Document No. 01 (2019) of  Shanghai First Intermediate People’s Court for details. The case was retrieved from Jufa Case Website.

 

31. Alan Dershowitz, Taking the Stand: My Life in the Law, trans. Zhu Yuanqing (Beijing: Peking University Press, 2020), 117-118.

 

32. Zhang Xiang, Selective Interpretation of German Constitution Cases (Volume 2): Freedom of Expression (Beijing: Law Press, 2016), 21. 

 

33. Ibid.

 

34. Chen Zheng, “On the Protection Range of Freedom of the Press in the Constitution of the People’s republic  of China”, Contemporary Law review 4 (2014): 12-19. 

 

35. Criminal Justice Termination No. 72 Ruling of a Criminal Action, Jiangxi Document No. 01 (2016) of  Nanchang City Intermediate People’s Court for details. The case was retrieved from Jufa Case Website.

 

36. Haidian District Criminal Justice Beginning No. 512 Ruling of a Criminal Action of Haidian District People’s  Court, Beijing, and Criminal Justice Termination No. 592 Ruling of a Criminal Action, Beijing Document  No. 01 (2016) of Beijing First Intermediate People’s Court, for details. The case was retrieved from Jufa  Case Website. 

 

37. Ibid.

 

38. Hu Jinguang and Han Dayuan, Constitution of the People’s republic of China (Beijing: Law Press, 2016), 1-20.

 

39. Xie Dengke, “On Authentication of Electronic Data”, Journal of the national Prosecutors College 5 (2017): 50-72. 

 

40. For example, Article 8, Clause 1 of the Electronic Data Provisions states: “If the original storage media of  electronic data can be seized to collect and extract the electronic data, the original storage media should be  seized and sealed up, the relevant information should be kept in a written form and the state of the sealed up  original storage media should be recorded.” 

 

41. Article 56 of the Criminal Procedure Law of the People’s Republic of China states: “The confession of  criminal suspects and defendants collected by using illegal methods such as extorting confessions by torture  and the witnesses, testimonies and statements of victims collected by using illegal methods such as violence  and threat should be excluded. If collection of some physical evidence and documentary evidence does not  conform to the statutory procedures, the physical evidence and documentary evidence may severely affect  judicial justice and they should be corrected or reasonably explained. If they can neither be corrected nor  reasonably explained, they should be excluded. If any evidence that should have been excluded is found  during the investigation, the examination for prosecution or the triad, the evidence should be excluded  according to law, it cannot be used as a base for opinions recommending prosecution, prosecution decisions  and judgment.”