Reinterpretation of the Nature of Retrieval of Electronic Data from Network Service Providers and Improvement of Procedures
As an important investigative measure,the retrieval of electronic data from the network service provider has shown compound properties in judicial practice,which are arbitrary,compulsory and,in some cases,"super compulsory".Criminal procedure law and the relevant judicial interpretation of the general authorization of access can no longer meet the characteristics of network service providers as third-party assistants.In this regard,two steps are needed to define the nature of retrieval in such cases:one is to determine whether the act of access violates the basic rights of the suspect,and the other is to apply the standard of"consent+reasonable expectation of privacy"to examine the degree of waiver of the suspect's rights.If the comprehensive determination of the specific act of retrieval is mandatory,it is needed not only to fully implement the principle of purpose limitation,but also need to balance the duty of investigative assistance and the obligation to protect the rights on the basis of clear conditions for the application of access and mode of operation.In addition,the exemption mechanism for retrieval of electronic data from network service providers should be constructed basing on the non-absolute priority of the obligation to assist in investigation.
network service providerselectronic dataretrievalcompoundexemption mechanism
万方数据
维普
