On October 1, a new set of rules took effect in China that raised alarms when first introduced last month. Casual observers worried that the “Provisions Concerning the Collection, Extraction, Review, and Judgment of Electronic Data in the Handling of Criminal Cases” (“Provisions”) (translation), issued jointly by the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security, would mean that from now on, every word you say in a Weibo post or WeChat circle could be used against you in court.
In fact, the Provisions don’t appear to give legal authorities greater powers or put PRC netizens and mobile users at substantially increased risk of criminal prosecution for their online activity. Rather, the new rules clarify the types of electronic data that can be collected in prosecuting criminal cases and establish protocols for handling the data.
That said, the public’s sense of insecurity can be readily understood in the context of a criminal justice system in which investigators routinely act arbitrarily and without effective checks on their power. Given the amount of content and metadata stored in computers, electronic devices, and network systems, the real question is whether China’s criminal justice system can adequately protect an individual’s legitimate right to privacy while exercising the power to collect and make use of electronic evidence.
In the course of a criminal investigation, Article 52 of the Criminal Procedure Law (CPL) in China gives courts, procuratorates, and public security organs the power to collect and obtain evidence from relevant organizations and individuals who, in turn, are obligated by law to be truthful and to provide the required information.
To obtain evidence from someone, investigators need only seek internal approval and do not need external authorization in the form of a warrant or something similar. Verification of evidence and review of whether it was obtained and handled lawfully is supposed to take place at trial, and any evidence deemed to have been collected or obtained unlawfully is supposed to be excluded.
When the CPL was amended in 2012, the section on evidence was updated to include electronic data among the kinds of evidence that can be used as the basis of a criminal conviction. Considering how much of contemporary life takes place online, including criminal activity, it’s reasonable to give law enforcement some power to collect electronic evidence in criminal investigations. And, given that data can be easily altered or deleted, there are particular concerns regarding timely seizure of the evidence and preservation of its integrity. Recognizing this, the new measures aim to provide clear standards for collecting and storing electronic data, protocols for preserving the integrity of the data, requirements regarding the chain of custody as electronic evidence moves through the criminal procedure, and guidelines for verifying and validating evidence.
Perhaps the main reason Chinese netizens have been so alarmed by the Provisions is the broad, open-ended scope of digital content that is now potentially subject to collection and to being used as evidence in criminal cases. Included are:
- Information on web pages, blogs, microblogs, chat groups, and network cloud storage
- Correspondence in the form of text messages, email, instant messages, and chat groups
- Other data such as account registration, user authentication data, electronic transaction records, and login records
With potential access to so much data from computers and networks, authorities will inevitably encounter personal data of a private nature that has no connection to the criminal investigation at hand. According to legal commentator Bing Lin at the Beijing Times
If collection of evidence is not subject to regulation, and attention is not paid to protecting citizens’ privacy, it will be very easy for an individual’s personal information to be leaked. Therefore, the granting of power to law enforcement agencies to collect electronic data as evidence also implicitly carries the imperative to regulate the way this power is carried out in order to achieve a balance between fighting crime and protecting citizens’ privacy.
According to Bing Lin: “We cannot one-sidedly focus on the role electronic evidence can have in fighting crime while ignoring the need to regulate the way that law-enforcement personnel collect this evidence.” Though Legal Daily commentator Liu Xun starts from the premise that public interest outweighs the individual’s right to privacy, he too acknowledges "When it comes to collecting and obtaining electronic data, judicial authority should define concrete measures in order to effectively prevent investigators from disclosing personal or private information and to reinforce implementation of the discipline for maintaining secrecy."
One of the arguments used to reassure the public is that law enforcement authorities have these powers to collect and obtain electronic evidence only in the context of criminal investigations. However, the editorialists at Southern Metropolis Daily point out that this argument actually offers little comfort:
What’s truly worth noticing is the impulsive and arbitrary manner in which criminal prosecutions are carried out in some parts of China, without effective limits or oversight. Sometimes it’s too easy to file a criminal case for investigation (for example, in past arrests of individuals for so-called “online defamation of county leaders”). Sometimes the exact opposite is the case...The reality behind the contradiction is the arbitrary way that criminal cases are filed for investigation. What prompts public concern about the new rules covering data collection from Weibo and WeChat friend circles is the lack of effective oversight of the criminal case-filing process and the absence of strong procedural checks on the way specific cases are handled (particularly where judicial authorities accept evidence that they know was unlawfully obtained).
Noting that the Provisions raise issues that have “broad impact on citizens’ lives,” the Southern Metropolis Daily hints that when decisions about electronic data collection depend solely on judicial interpretations and administrative regulations, there is no avenue for public input. Ensuring that rule-making “adheres to the relevant provisions of Legislation Law” and “makes public input a mandatory part of the process” will “help dispel misconceptions and prevent surprise attacks.”