The applicable scope and conditions of electronic surveillance
1. Scope of application
All countries have limited electronic eavesdropping to a certain scope of application based on the principle of felony. The regulations mainly include the following three methods: First, citing Germany and Japan, according to Article 100a of the German Criminal Procedure Code According to the provisions of the Article, the crimes applicable to eavesdropping include: treason, crimes endangering national interests, criminal offenses and various terrorist organization crimes, homicide, kidnapping, robbery, extortion, arson, and serious burglary. and crimes of receiving stolen goods, serious drug crimes, and crimes that violate specific regulations on the protection of foreign trade [3]. Japan's wiretapping law also stipulates that wiretapping only applies to four crimes: drug crimes, crimes involving firearms, organized homicide and illegal border crossing by gangs. The second is France's general provision that wiretapping can be carried out under Article 100 of the French Code of Criminal Procedure for any offense punishable by a prison term of two years or more. To some extent, this has resulted in the generalization of wiretapping and is not conducive to the protection of individual rights. As German scholar Thomas Weigandt said: "It seems that the temptation is to use the suspect's own words to accuse him or her." So strong that it outweighs more important concerns about privacy."[4] The third type is Italy’s summary and enumeration law. Article 266 of Italy’s Criminal Procedure Code stipulates that electronic eavesdropping is limited to non-negligent crimes punishable by law with life imprisonment and imprisonment of more than five years, as well as crimes endangering public security management.
The "Criminal Procedure Law" limits electronic eavesdropping to non-negligent crimes that are punishable by law with life imprisonment and fixed-term imprisonment of more than five years, as well as crimes that endanger public security management, and lists crimes involving narcotics and Four serious crimes include crimes involving psychostimulant drugs, crimes involving weapons and explosives, smuggling crimes, and crimes involving the use of telephones to assault and insult, threaten, harass or interfere with another person.
On the one hand, summarizing and enumerating avoids the disadvantages of enumerating serious crimes or new crimes that may be missed and require hearings, and on the other hand, it overcomes the disadvantages of overly broad generalizations. Our country’s legislation on electronic surveillance should adopt this approach. The mode and provisions of electronic surveillance should apply to intentional crimes such as non-negligent crimes and serious violent crimes that may be sentenced to more than 3 years in prison, organized crimes of a mafia nature, crimes of terrorist organizations, drug crimes, corruption and bribery crimes, and crimes endangering national security. . Three years is the dividing line between minor and serious crimes. It is easier to operate with three years as the boundary, and it is also in line with the legislation of most countries.
2. Scope of objects
Article 15 of Japan’s Wiretap Law stipulates: “For persons related to doctors, dentists, midwives, nurses, lawyers (including foreign lawyers), notaries, and religious professionals ", that is, communications related to one's business entrusted by others are not allowed to be eavesdropped." Germany's eavesdropping targets are mainly criminal suspects, but in order to prevent criminal suspects from using others to carry out criminal activities, the scope of eavesdropping targets can be expanded to include those who may commit crimes. A person who sends, transmits, receives, or stores information about a suspect, but is prohibited from eavesdropping on the defender. In France, the targets of eavesdropping include criminal suspects, third parties and civil parties, and even lawyers, members of the National Assembly and senators. It is only required that the president of the bar association must be notified when eavesdropping on lawyers, and the president of the parliament must be notified when eavesdropping on members.
The author believes that the objects of electronic monitoring should be strictly limited to criminal suspects. However, since criminal suspects may use or collude with others to commit criminal acts or conceal criminal evidence, it is not appropriate for criminal suspects to send, transmit, receive, or Stored information should also be included in the scope of monitoring. Unless there is sufficient evidence to prove that the suspect colluded with his lawyer, psychologist, pastor, spouse, etc. to commit a crime, it is prohibited to monitor the communications between the suspect and his lawyer, psychologist, pastor, spouse, etc.
Because criminal suspects and their lawyers, psychologists, clergy, spouses, etc. have established good social relationships based on mutual trust or mutual affection, so that the public order and good customs of the entire society can be maintained. When there is a conflict between discovering the truth of the case and maintaining the above-mentioned social relationships, Priority should be given to protecting the latter, otherwise members of society will be at a loss in mutual suspicion and panic, and the entire society will have no sense of security and trust at all.
3. Applicable conditions
Japan’s Wiretapping Law stipulates that the implementation of electronic wiretapping must meet the following conditions: First, one of the following circumstances exists: (1) There are sufficient reasons to suspect that it has been carried out (2) There are sufficient reasons to suspect that after committing a specific crime, the same or similar specific crime will be committed in the same way in the future. crime. (3) There are sufficient reasons to suspect that, in the process of making necessary preparations for the commission of a specific crime, a major crime inseparable from the specific crime has been committed and that the specific crime will be committed in order to further commit the specific crime, and there are sufficient reasons to suspect that these The crime was committed by several people***. Second, there are circumstances that are sufficient to suspect that plans, instructions or other communications related to the commission of a specific crime will be carried out, or follow-up measures such as hiding evidence will be taken; third, there are circumstances that are sufficient to suspect that the perpetrator will use communication facilities based on phone numbers or other methods The circumstances of committing a specific crime; fourth, there are major difficulties in identifying the perpetrator and ascertaining the facts of the case through other methods[5]. Japanese law prohibits prior wiretapping (i.e. wiretapping in response to possible future crimes) [6]. In France, the conditions for the adoption of electronic eavesdropping measures are quite relaxed: "The examining magistrate may decide to intercept, register and transcribe communications for investigative purposes, a measure he authorizes and supervises".
The provisions on the applicable conditions for electronic monitoring should not be too harsh, making it difficult to apply electronic monitoring, let alone expanding the scope of application of electronic monitoring at will. The author believes that the application of electronic monitoring in our country should meet the following conditions: First, There is sufficient evidence that the designated person will commit, is committing, or has committed a specific crime; second, there is sufficient evidence that the place or facility being monitored will be used for a specific crime; third, it is necessary to take eavesdropping measures, that is, an attempt has been made Traditional investigation methods are used, but it is impossible or difficult to ascertain the facts of the case, or there are other major dangers.
(2) Period of electronic wiretapping
The maximum period for a Japanese judge to authorize wiretapping is 10 days. It can be extended at the request of the prosecutor or judicial police, but the cumulative period shall not exceed 30 days is the shortest period stipulated by various countries. Germany sets a maximum period of 3 months, which can be extended by no more than 3 months if conditions permitting wiretapping still exist. The maximum period in France is 4 months, with no limit on the number of extensions it can have. The United States stipulates that the period of wiretapping can only be the time necessary to achieve the purpose of wiretapping, and must not exceed 30 days from the date of wiretapping or 10 days after the issuance of the wiretapping order. Accordingly, the wiretapping period cannot be extended and can only be reapplied [7].
On the one hand, the electronic surveillance legislation is to facilitate the investigation of the investigative agencies, and on the other hand, it is to limit the power of investigation and protect human rights. In our country, the period of electronic surveillance should be limited to the purpose of the surveillance, and the longest It shall not exceed 2 months. If the investigative agency deems it necessary to continue monitoring during the electronic surveillance period, it shall reapply for an electronic surveillance order.
(3) Issuance of electronic surveillance orders and their exceptions
Japan’s electronic surveillance must be issued by a judge and strictly excludes unwarranted surveillance by prosecutors and judicial police. Germany also emphasizes the principle of warrants. Even if one party to the communication agrees, investigative agencies are not allowed to conduct electronic eavesdropping without a warrant. U.S. law does not strictly require that electronic surveillance must be initiated with a warrant, but stipulates that investigators have the right to conduct warrantless surveillance in emergencies. However, there are two conditions for warrantless eavesdropping: First, one of the following emergency situations exists: there is an imminent danger of death or serious bodily harm. There is a conspiracy that threatens national security interests. (Conspiracy of organized crime; ③Conspiracy of organized crime; Secondly, there are multiple reasons to believe that a warrant authorizing wiretapping will be obtained under the provisions of this law [8]. Of course, wiretapping without a warrant can only be obtained by a judge with jurisdiction Approval is effective.
Compared with Japan's strict exclusion of warrantless eavesdropping, this provision is more flexible and practical.
my country’s electronic surveillance legislation should adhere to the principle of judicial writs. Investigative agencies that want to take electronic surveillance measures should submit a written application for electronic surveillance supported by reasonable grounds. After strict review, the court should issue an electronic surveillance application if it decides to apply surveillance. The warrant for surveillance shall include: the name of the person being monitored, the identity of the suspect being monitored, the location and duration of the surveillance, the monitoring equipment used or the method of implementation, and the names of the decision-making and implementing agencies. At the same time, taking into account the increasingly severe social security situation in our country, if the approval procedures for electronic surveillance are strictly required indiscriminately, it will inevitably delay the investigation in some special emergencies, and may even cause serious harm to national security or personal life and health. Therefore, it is necessary to give the investigative agency the right to conduct surveillance without a warrant in emergency situations. Of course, surveillance without a warrant must be approved by the decision-making authority within a specific time (such as 72 hours). hours), electronic surveillance without approval is invalid.
(4) Restrictions on the implementation of electronic eavesdropping
When conducting eavesdropping, Japan uses "eavesdropping witness" to ensure the legality of the eavesdropping behavior. "Wiretap witnessing" requires that "the manager or the manager's representative of the communication facility being monitored should be present. If the above-mentioned personnel cannot be present, staff of the local public security organization should be present." Witnesses can also report to the prosecutor and the judicial police to explain the implementation of surveillance. In the United States, there is a "minimum requirement" that during eavesdropping at least communications not relevant to the investigation should be intercepted[10]. When it is not certain that the content of the conversation is related to the investigation, the phone should be turned on every few minutes; in addition, a binary recording system can also be used. When the content of the conversation is ambiguous, one of the recording systems should be turned on every few minutes, and the other recording system should be turned on every few minutes. The system records all content. If there is content that is not recorded by the first recording system, it can be searched in the records of the second system with authorization. Record.
The following restrictive measures should be taken in the implementation of electronic surveillance in our country: First, the implementation of electronic surveillance should generally be based on the surveillance order. The investigative agency must conduct surveillance within the period and location recorded in the surveillance order, and must not exceed the surveillance order. to order illegal surveillance; secondly, during the surveillance process, the principle of minimizing surveillance behavior should be followed, and communication content unrelated to specific crimes should be avoided as much as possible; secondly, during the surveillance process, the principle should be based on the principle of minimizing losses as much as possible. Try not to monitor communication content that is not related to a specific crime; thirdly, the recording method of monitoring should not be limited to recording by electronic devices or other similar devices, but the implementation of monitoring and the content of the monitoring should be recorded in writing as much as possible, and It must be signed and confirmed by the person who conducts the surveillance; in addition, the person who conducts the surveillance should also be required to report the progress of the surveillance to the decision-making body every week and whether it is necessary to continue the surveillance.
(E) Preservation and use of electronic wiretapping data
Both Japan and the United States have regulations on the preservation of wiretapping data. In the United States, wiretapping records must be immediately sent to the person who issued the warrant. The judge shall seal and designate the storage location to prevent the data obtained from wiretapping from being leaked or tampered with. France and Germany stipulate that the information obtained from wiretapping is retained by the prosecutor's office as prosecutor. The author believes that the regulations of Japan and the United States reflect the constraints on eavesdroppers and have reference significance for our country.
Germany has placed many restrictions on the use of wiretapping information, stipulating that recordings obtained without official authorization may not be used as evidence; if such wiretap information is not difficult to obtain the statement of the person being wiretapped, the statement shall not be used as evidence. Use of evidence; legally obtained surveillance information is illegal if it is only a summary playback or reading of the fragment content; surveillance information obtained by persons outside the case shall be destroyed under the supervision of the prosecutor; in the case of violation of the law, the prosecutor shall not use the surveillance information information. Destroyed under the supervision of prosecutors; information that is no longer required for monitoring in the prosecution of crimes shall be destroyed under the supervision of prosecutors[11].
Our country’s legislation should clearly stipulate whether electronic surveillance information can be used as evidence, and whether personal information accidentally intercepted can be used as evidence in other criminal proceedings. It depends on whether the scope of the criminal case charged falls within the scope of surveillance. , whether it can be used for cases that fall within the scope of surveillance, or whether it should be destroyed. If the investigative agency decides to withdraw the case, the procuratorate decides not to prosecute, or the court renders a not guilty verdict, the information obtained through surveillance must be destroyed in a timely manner.
(6) Protect the rights of the person being monitored
Japan’s wiretapping law stipulates that prosecutors or judicial police should notify the person being monitored in writing of the monitoring record; the person who receives the notice can monitor , read, copy relevant parts of the surveillance records, or declare that they are unwilling to accept the surveillance order and request that the surveillance order be revoked or changed; prosecutors or judicial police are not allowed to let others know the contents of the monitored communications or use the monitored communications. The United States stipulates that eavesdroppers have the right to request the exclusion of the monitored communications or evidence obtained from them for the following reasons: (1) The communications were illegally eavesdropped; (2) The form of the wiretapping warrant used as the basis for the wiretapping is insufficient; (3) The wiretapping was not conducted in accordance with the requirements. The provisions of the wiretapping warrant are carried out; in addition, if the communication is illegally intercepted, leaked or illegally used, the eavesdropper has the right to initiate a civil lawsuit for the violation.
In my country's electronic surveillance legislation, the following rights should be guaranteed for the monitor: the right to know and the right to review objections; ② the right to confidentiality; ③ the right to exclude, the monitor has the right to ask whether the electronic surveillance information is illegal and to request the exclusion of evidence. ; The right to use, for the benefit of the eavesdropper, the eavesdropper and his defender have the right to use the information to defend innocence or misdemeanor; ⑤ The right to damage compensation, if the communication has been illegally eavesdropped, the right to demand compensation for damages. For communications that have been illegally eavesdropped, the eavesdropped can file a civil infringement lawsuit and treat the investigation agencies and decision-making agencies as perpetrators and infringers to safeguard their legitimate rights and interests.