2016.10.01
James Cheng
Even though the legal status of electronic data as evidence has been clearly established after electronic data became included as evidence under the Criminal Procedure Law in 2012, there has yet to be a standard for the collection, review and determination of electronic data. Therefore, the Provisions on Issues in the Collection, Retrieval, Review and Determination of Electronic Data in Criminal Cases (the “Provisions”) are intended to lay out rules regarding electronic data and will thus be highly instructional to judicial practice. The Provisions, which came into effect on October 1, 2016, cover four aspects in the general provisions concerning electronic data, the collection and retrieval of electronic data, the transfer and display of electronic data and the review and determination of electronic data. This article will briefly introduce the particular features of the Provisions.
First, the concept and scope of electronic data are defined, with evidence such as digital records of witness testimonies now excluded as electronic data. Electronic data are formed during the process of a case, such as those that are stored, processed and transmitted digitally which may be used to prove the facts of the case, including but not limited to information released online on webpages, blogs and Moments; communications via network application services such as SMS, email, or instant messaging; subscriber registration, identification verification, electronic transaction records; and electronic documents such as files, images and audios and videos.
Second, a basic principle that “the seizure of the original storage media shall be the rule and retrieval of electronic data an exception” is established. Due to the fragility and vulnerability of electronic evidence to viruses, hacking, surveillance, wiretapping, extraction, alteration or deletion, among others, by stipulating the seizure of the original storage media as the rule will help to ensure the authenticity and integrity of electronic data.
Third, it is specifically stipulated that if the size of the electronic data renders it impossible or difficult to retrieve, or if the long retrieval time may allow such electronic data to be altered or destroyed, the electronic data may be frozen with the approval of the official in charge of a public security agency above the county level or of an attorney general.
Fourth, electronic data shall be examined with respect to their authenticity, legality and relevance. This requires judicial practice to not just simply focus on the authenticity of the electronic data.
Fifth, the various types of defects in electronic data are categorized as those which will be relatively excluded and those which will be absolutely excluded. For defects in form, such as delivery made in a non-sealed state, a failure to request signatures on a transcript or list, a failure to clearly specify the name, category and format of electronic data, or other defects, the electronic data may still be used after the defects are addressed or a reasonable explanation is provided. However, in case of substantive defects, such as an alteration or falsification of the data, or if it is not possible to confirm the authenticity of the data, as well as an addition, deletion or modification of the data which undermines their authenticity, such data shall not be used as a basis for making determinations in a case.