On the Nature of Online Retrieval of Electronic Data

WU Yingfei

Abstract: With the development of information technology, the online retrieval of remote electronic data has become an important method for investigative agencies to collect evidence. In the current normative documents, the online retrieval of electronic data is positioned as a new type of arbitrary investigative measure. However, study of its actual operation has found that the online retrieval of electronic data does not fully comply with the characteristics of arbitrary investigative measures. The root cause is its inaccurately defined nature due to analogy errors, an emphasis on the authenticity of electronic data at the cost of rights protection, insufficient effectiveness of normative documents to break through the boundaries of law, and superficial inconsistency found in the mechanical comparison with the nature of existing investigative measures causes. The nature of electronic data retrieved online should be defined according to different circumstances. The retrieval of electronic data disclosed on the Internet is an arbitrary investigative measure, and following procedural specifications should be sufficient. When investigators conceal their true identities and enter the cyberspace of the suspected crime through a registered account to extract dynamic electronic data for criminal activities, it is essentially a covert investigation in cyberspace, and they should follow the normative requirements for covert investigations. The retrieval of dynamic electronic data from private spaces is a technical investigative measure and should be implemented in accordance with the technical investigative procedures. Retrieval of remote “non-public electronic data involving privacy” is a mandatory investigative measure, and is essentially a search in the virtual space. Therefore, procedural specifications should be set in accordance with the standards of searching.

Keywords: electronic data · online retrieval · compulsory investigation · search · right to privacy