Electronic Evidence in China
With the rapid development of science and technology, the popularization of the Internet and social media, electronic evidence such as emails, blog posters, instant messages, electronic trading records, correspondence records and login logs have become a new addition to the body of evidence worldwide. China officially recognized electronic data as one of the categories of evidence in 2012, when the Criminal Procedure Law and the Law on Civil Procedure were revised. It is generally considered that the use of these new evidence should comply with the rules of evidence, since electronic data has some features that distinguish them from other traditional evidence. In order to regulate the use of electronic evidence in criminal cases, the Supreme People's Court of China (SPC), the Supreme People's Prosecutor's Office (SPP) and the Ministry of Public Security (MPS) jointly issued Regulations on a number of issues related to the collection, seizure, examination of electronic data and adjudication of them in criminal cases in 2016. Then in 2019, the Ministry of Public Security published more detailed Rules for Obtaining Electronic Data as Evidence, in an attempt to solve practical problems encountered in the collection, seizure and verification of electronic data.
The Supreme People's Court of China included some new provisions on the use of electronic evidence in civil cases when it revised the Rules of Evidence in Civil Cases in 2019. These legal documents not only provide a general legal framework for the use of electronic evidence in both civil and criminal proceedings, but also contain useful technical recommendations and procedural rules for the collection and examination of digital evidence.
However, very few law researchers in China conduct in-depth research on this topic due to its interdisciplinary nature. The article attempts to address key issues related to the collection, adoption, study and adjudication of electronic evidence in criminal and civil cases, identify weaknesses in current legislation and put forward some proposals for future reforms.
Keywords: electronic evidence, use of electronic evidence, regulations.
1. Introduction
China officially recognized electronic data as one of the categories of legal evidence in 2012, when amendments were made to the Criminal Procedure Law and the Civil Procedure Law on Civil Proceedings.
Accordingly, a number of resolutions were promulgated in the following years. The Supreme People's Court (VNC), the Supreme People's Prosecutor's Office (VNP) and the Ministry of Public Security (MOB) jointly issued Regulations on a number of issues related to the collection, acceptance, consideration and adjudication of electronic evidence in criminal cases in 2016.
In 2019, members of Parliament adopted more detailed Rules for obtaining electronic data as evidence. They regulate the practical issues that arise during the collection, seizure and verification of electronic data. With regard to civil cases, the VNC included some new provisions on the use of electronic evidence in civil cases when it revised the Rules of Evidence in Civil Cases in 2019.
These normative legal acts not only provide a general legal framework for the use of electronic evidence in both civil and criminal proceedings, but also contain technical recommendations and procedural rules on how to collect, preserve, present, study and evaluate digital evidence.
Previous studies have summarized the use of digital evidence in Chinese court proceedings quite fully, but they are outdated, since they were written before the release of the above-mentioned new legislative acts (Zhang and Chen, 2012) <1>.
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<1> Zhang Baosheng, Chen Huangxun. Applications and trends of digital/electronic evidence in Chinese litigation. In: Kengyel M., Nemessanyi Z., editors. Electronic Technology and Civil Procedure. Ius Gentium: Comparative Perspective on Law and Justice 15.
The 2020 article by Du, Ding & Chen dealt with recently published rules, but the discussions seemed to be structured in a way familiar to Chinese legal science (Du, Ding and Chen, 2020) <2>.
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<2> Du Jin, Ding Liping, Chen Guangxuan. Research on the rules of electronic evidence in Chinese criminal proceedings. Int J Digital Crime Forensics. Vol. 12. Is. 3. July - September 2020.
The 2020 paper by Peng and Durantis investigated the admissibility of electronic evidence in China, but it was written from a historical perspective <3>.
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<3> Pan Weimei, Duranti Luciana. Sitting in limbo or being the flaming Phoenix: the relevance of the archival discipline to the admissibility of digital evidence in China. Arch Manuscripts 2020.
This study attempts to address the key issues of collection, seizure, examination and evaluation of electronic (digital) evidence in criminal and civil cases, identify weaknesses in current legislation and put forward some legislative proposals for future reforms.
2. Setting the task
There is an increasing body of literature that recognizes the importance of electronic data in criminal cases. Currently, research is mainly concerned with the concept, position and features of electronic evidence. Unfortunately, very few law researchers in China conduct in-depth research on this topic due to its interdisciplinary nature.
3. Methodology
The study presents a comprehensive study of the problems and prospects of using electronic evidence in the Chinese court related to the collection, seizure, research and evaluation of electronic evidence in criminal and civil cases.
The study used dialectical, formal legal and comparative legal, concrete historical, inductive, deductive methods, a systematic approach, analysis, synthesis, methods of historical and logical analysis, which cover the phenomenon under study in all its manifestations.
The authors identified weaknesses in the current legislation and put forward proposals for its improvement in order to take into account various legal issues arising in the legal reality when reforming legislation. The regulatory framework includes Chinese legislation, as well as doctrine, national and international law enforcement practices.
This scientific study was conducted between December 2019 and December 2022.
4. Discussion
First of all, it should be noted that three theoretical issues have attracted the most attention and caused the most controversy among scientists and practitioners: the definition, position and features of electronic evidence.
The concepts of electronic evidence are central to the further study and use of electronic (or digital) data. Some researchers of civil and commercial law first used this term when they studied electronic data exchange in international trade.
It was only after computer crime was recognized as an offense, especially after computer crimes were included in the Criminal Legislation of the People's Republic of China in 1997, that electronic data attracted the attention of scientists in the field of criminal law. In the beginning, electronic data was also referred to as electronic evidence or computer data.
Criminal law researchers studying computer crimes prefer to use the term "computer data" or "computer evidence" <4>. When examining evidence, the term "electronic evidence" was more often used <5>.
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<4> Wei You & Yuanlin Xia. Evidentiary Value of Computer Data and Xi'an Zhang, Several Issues on Computer Evidence, see Changjiang Zhao & Cui Li (2015), Dianzi shuju gainian zhi chongshu [Reconstructing the Concept of Digital Data], Chongqing youdian daxue xuebao (shehui kexue ban). Vol. 27. No. 6. 2015. P. 61.
<5> Pinxin Liu (2002), Lun dianzi zhengju de dingwei - jiyu zhongguo xianxing zhengju falv de sibian [Status of Electronic Evidence: A Deliberation Based on China's Current Evidence Law], Fashang Yanjiu. Vol. 4. 2002. P. 37 - 44.
In the regulations of the Ministry of Internal Affairs on procedures for the consideration of criminal cases by public security agencies (1998), the term "electronic data" was first included in criminal legal acts as a legal term. The regulations of the Ministry of Internal Affairs on procedures for the consideration of criminal cases by public security agencies (1998) repeat the term "electronic data", which is defined as "data stored, processed and transmitted in digital form" <6>.
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<6> Article 2, the MPS Rules for Forensic Examination of Electronic Evidence (2005).
However, in the Regulation on Procedures for the Consideration of Administrative Cases by Public Security Agencies (2006), "electronic evidence", along with audio-visual materials, is listed as one of the types of evidence recognized in administrative proceedings.
The term "electronic evidence" has also been used in the Rules on the Examination and Evaluation of Evidence in Death Penalty Cases (2010) and in opinions on a number of issues related to the application of the law in Criminal Cases Related to Online Gambling (2010).
The amendment to the Criminal Procedure Legislation of 2012 used the term "electronic data", including them together with audio-visual materials as the eighth mandatory evidence in criminal proceedings. Since then, the term "electronic data" has become the most commonly used.
Moreover, the most controversial issue is which category of evidence electronic data should belong to, if they are approved by law. There are three main opinions as to which category electronic evidence belongs to.
First. It was believed that electronic evidence belonged to a certain traditional category of evidence. There are two aspects to this point of view.
The most common view is that electronic evidence should be "audiovisual materials" because electronic evidence uses the same medium as audiovisual materials. Neither electronic evidence nor audiovisual materials can be perceived or understood without the use of certain tools or certain means. Therefore, electronic evidence should fall under the category of audiovisual materials <7>.
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<7> Yuqian Bi (2016). Dianzi shuju tingshen zhengju diaocha moshi shibian) [The Distinguishing of Trial Evidence Investigation Mode of Electronic Data], Guojia jianchaguan xueyuan xuebao, Vol. 24. No. 1. 2016. P. 126.
Audiovisual materials have been recognized as a legally established category of evidence since the adoption of the Civil Procedure Act of 1982. Chinese scientists believed that audiovisual materials include audio materials, visual materials, computer-stored materials, and other audiovisual materials. This point of view has also been reflected in some legal documents.
For example, the rules of the GNP on the application of criminal procedure legislation provided that audiovisual materials include information stored in computer memory. The VNC Rule on Civil Evidence (2001) referred to "data stored in mobile phones or computers" along with "audiovisual materials", as did the VNC rule on administrative evidence (2002).
Perhaps it was the custom of mentioning electronic evidence in conjunction with audiovisual materials that made it seem that this could be widely interpreted as a concept encompassing electronic evidence, and vice versa.
Another popular aspect was that electronic evidence should relate to documentary evidence.
Proponents of this point of view considered computer records as documentary evidence in digital form, since these proofs confirm the fact with their content, and not with the format <8>. This point of view has supporters in other jurisdictions <9>.
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<8> Xi'an Zhang (2000). Lun jisuanji zhengju de jige wenti [Several Issues on Computer Evidence], Renmin Fayuanbao. Vol. 1107. 2000. P. 3.
<9> Pinxin Liu (2002). Lun dianzi zhengju de dingwei - jiyu zhongguo xianxing zhengju falv de sibian [Status of Electronic Evidence: A Deliberation Based on China's Current Evidence Law], Fashang Yanjiu Vol. 4. 2002. P. 39.
Some scientists tend to classify electronic evidence as physical evidence or a forensic medical examination report, for example, Ligen Xu believed that electronic evidence refers to documentary evidence if there is no need for a forensic medical assessment; electronic evidence can be physical evidence, since sometimes authentication is required for it.
If one of the parties disputes the reliability of certain electronic evidence, the court must provide the evidence in question to experts, then the electronic evidence becomes an expert opinion.
However, these two points of view have too few supporters to be representative. The second point of view can be called the mechanism of the "doctrine of mixed evidence". It was believed that electronic evidence belonged to various traditional categories of evidence, rather than to one specific category.
Ping Jiang divided the electronic evidence into four groups, which belong to the four traditional categories of evidence, namely: documentary evidence, audio-visual materials, transcripts of the crime, inspection of the scene and expert opinion <10>.
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<10> Ping Jiang (2000). Jisuanji fanzui wenti yanjiu [A Study of Computer Crime]. Shangwu yinshuguan. 2000. P. 16.
Pinxin Liu was of the opinion that the definition of which category electronic evidence belongs to should depend on the mechanism of proof. If the mechanism of proof resembles the mechanism of some traditional evidence, electronic evidence must belong to this traditional evidence; otherwise it is a new type of evidence.
Since electronic evidence has not created a new proof mechanism, it differs from traditional evidence only in format and should not be considered as independent evidence. Liu also believed that every traditional category of evidence has an electronic form <11>.
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<11> Pinxin Liu (2002). Lun dianzi zhengju de dingwei - jiyu zhongguo xianxing zhengju falv de sibian [Status of Electronic Evidence: A Deliberation Based on China's Current Evidence Law], Fashang Yanjiu. Vol. 4. 2002. P. 42.
Zongzhi Long supported the doctrine of mixed evidence, but according to his understanding, the data stored in the computer should be documentary evidence if it can be printed. However, if an investigation, inspection, or forensic medical examination is used to obtain computer evidence, the results are either the manuscripts of the investigation and inspection, or the expert's opinion <12>.
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<12> Zongzhi Long (2005). Zhengju fenlei zhidu jiqi gaige [Categories of Evidence and Its Reforms]. Faxue Yanjiu. Vol. 5. 2005. P. 15.
Some scientists believed that electronic evidence should be considered as a new form of evidence. This point of view is called the doctrine of independent evidence.
On the one hand, electronic evidence has unique characteristics that distinguish it from other types of evidence <13>, therefore, it cannot be covered by any traditional evidence. For example, electronic evidence differs from documentary evidence in that it is stored electronically, and its display must depend on certain devices and software.
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<13> Minyan Wang. Electronic Evidence in China, 5 Digital Evidence & Elec. Signature L. Rev. 45 (2008). P. 46. In this article, the author explained how electronic evidence is different from documentary evidence and audiovisual materials.
In addition, a change in an electronic document cannot be detected by the document itself, unlike a change in a paper document, where the change always leaves some trace.
Another example: electronic evidence is stored differently from audio-visual materials. As some scientists have noted, audio or video materials stored in a computer or similar devices using digital signals should be electronic evidence. However, audio or video materials stored on cassettes or tapes using analog signals should still fall under the category of audiovisual materials <14>.
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<14> Jiahai Zhou & Haisong Yu (2017). Guan yubanli xingshi anjian shouji tiqu he shencha panduan dianzi shuju ruogan wenti de guiding de lijie yu shiyong [The Understanding and Application of the Provisions on Several Issues concerning the Collection, Taking, Examination, and Judgment of Electronic Data in the Handling of Criminal Cases]. Renmin Sifa Yingyong. Vol. 4. 2017. P. 31 - 38.
On the other hand, the variety of electronic evidence is growing with the development of the Internet and information technology. As electronic evidence is increasingly used in modern court proceedings, it will play an increasingly important role in proving facts. Therefore, electronic evidence deserves to be considered as one of the independent categories of evidence <15>.
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<15> Yuqian Bi (2016). Dianzi shuju tingshen zhengju diaocha moshi shibian [The Distinguishing of Trial Evidence Investigation Mode of Electronic Data]. Guojia jianchaguan xueyuan xuebao. Vol. 24. No. 1.2016. P. 127.
In addition, it is not surprising that the features of electronic evidence have become the subject of great research interest.
According to Stephen Mason and Daniel Seng <16>, first, electronic data depends on both machines and software, and it must be transformed into a human-readable form using technology. However, operating systems, application software, and hardware technologies are changing rapidly. It is important that the expert has up-to-date knowledge and is constantly trained.
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<16> See Stephen Mason & Daniel Seng. Electronic Evidence and Electronic Signatures. 5th edition. Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2021.
Secondly, unlike traditional evidence, for which observation or analysis of the crime scene does not change anything, in the case of electronic evidence, simply starting a computer and opening a document changes them, transforming metadata. Therefore, digital evidence specialists use protocols and procedures to minimize, if not eliminate, the distortions that an investigation creates.
Thirdly, computer networks make it possible to create and exchange electronic data in much larger volumes than was previously possible, and quickly overcome physical and geographical boundaries. The ease of transmission and replication has increased the potential amount of data that needs to be identified in order to obtain relevant evidence.
Fourth, the media on which electronic data is stored is fragile. They are also at risk of accidental or intentional damage or removal. Computers, systems, and digital devices currently operate primarily in a network environment. Almost everything that anyone does on a network-connected device can be distributed and duplicated with exceptional ease. As a result, the same digital data element can be located almost anywhere.
The fragility and ubiquity of electronic media have turned modern research into a complex process. Chinese scientists have described electronic evidence from different perspectives. Some believed that electronic evidence was high-tech, vulnerable, complex evidence with graphs, drawings, text, animation, audio and video in one bottle <17>.
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<17> Chongyi Fan & Siyuan Li (2016). Lun dianzi zhengju shidai de daolai [Arrival of Electronic Evidence Era]. Suzhou daxue xuebao (zhexue shehui kexue ban). Vol. 37. No. 2. 2016. P. 101.
Others assumed that electronic evidence has characteristics such as diversity, impalpability, instantaneity and objectivity (electronic evidence leaves a mark on a computer system or the Internet using registration information after its creation). They also have dispersion and continuity, i.e. electronic evidence may exist in different places, but they still maintain their continuity in time and space, since the transmission and storage of computer data are continuous.
Some believed that electronic evidence was stored as digital or binary codes in various computing, telecommunications, or information environments. Thus, their work depends on specific devices and software platforms. <18>.
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<18> Jianjie Liu & Lin Wang (2013). Wangluo fanzui zhong de dianzi zhengju quzheng xiangguan wenti tanxi [Probing Issues on the Collection of Electronic Evidence in Cyber Crime Cases]. Xueshujie. Vol. 4. 2013. P. 141 - 145.
At the same time, there were those who believed that electronic evidence existed in a virtual or digital space, which is an intangible space where electronic evidence is not directly accessible. Electronic data can only be obtained by relying on high-tech devices.
The same scientists also believed that electronic evidence was systematic and stable. Any electronic evidence contains data, attached information, and tracking data; individual researchers have considered that electronic evidence is susceptible to alteration and manipulation <19>.
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<19> Xianpeng (2012). Dianzi zhengju zhi kecaixing tanxi: you yinsiquan baohu de jiaodu qieru [Admissibility of Electronic Evidence: Perspective of Privacy Rights Protection]. Xuexi yu shijian. Vol. 4. No. 9. 2012. P. 49 - 55.
Second. The use of electronic evidence in criminal cases is another important issue that includes the collection, seizure, presentation, examination and evaluation of electronic evidence in criminal cases in China. Two aspects of the use of electronic evidence in criminal cases have now become the most popular in legal and academic discussions.
With regard to the question of who has the right to collect electronic data, one aspect here is the collection of electronic evidence, which mainly discusses the procedural requirements for the collection and seizure of electronic data.
An important aspect is the competence of the data collector. The Conclusions of the VNC, VNP and MOB on some issues related to the application of criminal procedural norms in the consideration of cybercrime cases (2014) stated: "The collection and seizure of electronic data should be carried out by two or more investigators with relevant professional knowledge."
But the 2016 Regulations eliminated the seemingly too strict requirement of having "appropriate professional knowledge" and stated that "methods of obtaining evidence must comply with relevant technical standards."
Although most researchers see this as a signal of a weakening of the requirements for the subject collecting electronic data <20>, some scientists still believe that professional knowledge is a prerequisite for compliance with technical standards, therefore they insist on collecting electronic data by investigators with professional knowledge <21>.
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<20> Jiao Feng (2018). Hulianwang dianzi zhengju de shouji [Collection of Internet Electronic Evidence]. Guojia jianchaguan xueyuan xuebao. Vol. 26. No. 5. 2018. P. 33.
<21> Dengke Xie (2018). Dianzi shuju de quzheng zhuti: hefaxing yu hejishuxing zhijian [Collector of Electronic Evidence: between the Legality and Conformity to Technical Standards]. Huanqiu Falv Pinglun. Vol. 40. No. 1. 2018. P. 84.
There are three points of view among Chinese scientists as to whether the competence of the evidence collector directly affects the admissibility of electronic data. Some researchers believe that electronic evidence is unacceptable if it is collected by persons who are not investigators, or by less than two investigators <22>.
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<22> Ruihua Chen (2012). Xingshi zhengju faxue [Criminal Evidence]. Peking University Press, 2012. P. 87 - 88.
Obviously, this understanding is too categorical. Some scientists believe that the competence of the collector is irrelevant to the acceptability of electronic evidence, since the legality of the collection process is important here <23>.
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<23> Yi Wan (2010). Quzheng zhuti hefaxing lilun pipan [Criticism on the Theory of Evidence Collecting Subject Competency]. Jiangsu xingzheng xueyuan xuebao. Vol. 4. No. 5. 2010. P. 110 - 115.
There was a view that the competence of the collector should simply be a factor in determining whether electronic evidence was acceptable. Other factors include information about which category of evidence electronic data belongs to and how serious the procedural violation is, if any, etc. <24>
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<24> Zongzhi Long (2007). Quzheng zhuti hefaxing ruogan went [Several Issues on the Competency of Evidence Collecting Subject]. Faxue Yanjiu. Vol. 4. No. 3. 2007. P. 133 - 143.
The methods of collecting and seizing electronic data are an acute problem. Chinese regulations consider five types of such methods.
1. Withdrawal of the original media.
The 2016 regulations allow investigators to collect electronic data by removing the original media. At the same time, measures should be taken to "freeze them" if electronic data cannot be collected or seized directly.
The 2016 regulations made the removal of the original media a priority method of collecting electronic data. According to Article 8, the original media must be seized and sealed, a transcript must be prepared to record the sealing status of such an original media, as well as photographs taken before and after sealing.
In addition to the procedural requirements, the same article provides for sealing; i.e., it must be ensured that electronic data cannot be added, deleted or modified without removing the seal. When using a mobile phone or any other media with wireless communication functions, measures such as signal shielding, signal blocking, or power off must be taken.
2. Receiving electronic data in a direct way.
In cases where, due to circumstances established by law, it is impossible to remove the original media, the second most effective method is the direct collection of electronic data. However, procedural rules must be followed, such as specifying the reasons for the impossibility of removing the original media, the place of storage of the original media or the source of electronic data in decryption, as well as calculating the value of checking the integrity of electronic data.
This means that electronic evidence is still acceptable when the original media cannot be removed, but the integrity of electronic data becomes a crucial factor in assessing their reliability and reliability. The 2016 regulations also allow investigators to freeze electronic data if they cannot be obtained due to the large volume or their seizure may lead to forgery or loss of electronic data, since it takes too long, etc.
Electronic data can be frozen by calculating the value of checking the integrity of electronic data, blocking the account of a network application, or taking other measures to prevent the addition, deletion and modification of electronic data.
3. Printing, photographing or video recording.
This method is an additional method widely used in Chinese practice as a means of recording evidence before the seizure of electronic data, since these methods are more effective and cost-effective.
4. Remote Network check. Where it is not possible to obtain electronic data on site, investigators need to obtain electronic data via the Internet and, if necessary, conduct a remote network check. The 2016 Regulations contain a vague provision on the applicable circumstances of receiving electronic data online, i.e. when the source media is located abroad or the electronic data is in a remote computer information system.
However, based on China's respect for cyber sovereignty, the 2019 MOB Rules restrict online access to domestic electronic data and publicly disclosed foreign data. With regard to foreign electronic data that has not yet been made public, investigators may have to ask the foreign police to obtain the necessary electronic data in accordance with international treaties, cooperation mechanisms, mutual assistance in the field of criminal justice or other channels of international police cooperation.
5. The requirement for the owner of electronic data or an online service provider to provide electronic data. In exceptional circumstances, investigators may also ask the owner of electronic data or an online service provider to provide them with electronic data. There is no article in the 2022 conclusions on how a network service provider should provide electronic data at the request of public security authorities. In particular, it states that both the request and the provision of electronic data take the format of a data message.
The third issue is procedural safeguards for the collection of electronic data. The 2016 regulations also provide for procedural safeguards for the collection of electronic data. For example, when collecting and withdrawing electronic data, a transcript should be prepared to record the reason for the action, object, content, time, place, methods and process of collecting and withdrawing electronic data.
In addition, a list of electronic data must be attached, which specifies the category, file format and the value of the integrity check. The transcript and the list must be signed or stamped by the investigators and the owner (supplier) of the electronic data. And if the owner (supplier) of electronic data cannot or refuses to sign his name, this must be indicated in the transcript with the signature or seal of the investigator.
Where conditions permit, video recordings of the relevant actions should be stored. It is even more important that a person who has the right to do so should act as a witness during the collection of electronic data. Among these procedural guarantees, two mechanisms stand out.
One of them is a "procedural witness" (he must be a witness to the investigation process or the collection of evidence in order to guarantee the legality of these actions. The procedural witness must be neutral and objective and must not be associated with any of the parties to the trial).
Another mechanism is video recording. According to Chinese criminal procedure law and judicial interpretations, when conducting a seizure or inspection of a crime scene, the general requirement is the presence of a person who has the right to be a witness to the trial. If the procedural witness is unavailable for valid reasons, this should be noted in the protocol, and the relevant actions should be recorded on video.
Therefore, when collecting electronic data, at least one procedural measure should be provided: either the presence of a procedural witness or a video recording of the process. The 2019 MOB Rules contain detailed provisions on video recording of electronic data collection.
On the one hand, the whole process must be recorded on video when the original media is withdrawn or electronic data is taken on site.
On the other hand, for online electronic data collection, the entire process must be recorded on video if:
1) the case threatens national or public security; or
2) electronic data is the key evidence in the case, influencing the determination of guilt or the decision on life imprisonment or the death penalty;
3) the case is of public importance;
4) a suspect may be sentenced to imprisonment for a period of more than five years;
5) Other major cases require video recording of the entire process.
In other cases, only the basic steps should be recorded on video. The 2019 MOB Rules also clarify that manual actions are considered basic and must be recorded in full. Accordingly, actions that do not require manual control do not need video recording.
However, academic research on procedural safeguards for the collection of electronic evidence is more critical. Many researchers consider electronic data collection as a special type of investigation or the search and seizure of special evidence.
Therefore, procedural guarantees should differ depending on whether a mandatory or voluntary investigation is being conducted. Obviously, additional procedural safeguards are needed if electronic evidence is collected regardless of the consent of the electronic data owner.
For example, a warrant from a judicial authority may be required before investigators begin collecting electronic data. Another example: the defense party should have the right to view, study and copy electronic data collected by investigators. In addition, to demonstrate the authenticity and reliability of electronic data, a number of measures should be taken to store them <25>.
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<25> Yongsheng Chen (2014). Dianzi shuju soucha kouya de falv guizhi [Legal Control over Search and Seizure of Electronic Data]. Xindai Faxue. Vol. 36. No. 5. 2014. P. 111 - 127.
Another aspect mainly focuses on the guidance and challenges of presenting, examining and evaluating electronic data in criminal proceedings. As with all other types of evidence, the study and evaluation of electronic data focuses on three aspects: authenticity, legality and relevance.
A. Authenticity of electronic evidence and authentication rules.
The most important factor in the study and evaluation of electronic data in China is authenticity, which is a concept that combines objectivity, authenticity and reliability. In common law jurisdictions, authenticity usually means that evidence is genuine and not a forgery. Chinese scientists believe that the authenticity of electronic data depends mainly on originality, identity and integrity.
Of these three factors, integrity seems to be the most important, since the 2016 regulations provide for a separate paragraph regulating the verification of the integrity of electronic data. Integrity means that electronic data remains intact or intact. An integrity check is required.
There is some overlap between identity and integrity. Electronic data identical to the original is usually considered as complete <26>.
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<26> Fumin Chu (2018). Dianzi zhengju zhenshixing desange cengmian: yi xingshisusong weili de fenxi [Three Facets of Authenticity of Electronic Evidence: Taking Criminal Proceeding as An Example]. Faxue Yanjiu. Vol. 40. No. 4. 2018. P. 132.
When examining and evaluating the authenticity of electronic data, the following factors should be taken into account: the method of disposal of the original media, as regulated by Article 22(1) of the 2016 Regulations; whether special identifiers (digital signature and digital certificate) exist; whether the process of collecting or withdrawing electronic data can be reproduced, regardless of whether changes, deletion or modification of electronic data have been made (if so, then is an explanation attached), whether the integrity of electronic data can be guaranteed.
The 2016 regulations also provided for methods for verifying the integrity of electronic data, including:
1) examining the status of seizure or sealing of the original media;
2) studying the process of collecting or withdrawing electronic data and checking video recordings;
3) comparison of the results of checking the integrity of electronic data;
4) Comparing electronic data with a backup;
5) examination of access logs and operations after freezing.
The 2022 Conclusions require the use of electronic signatures or digital watermarks in legal documents and electronic certification documents in the format of data messages to ensure the completeness of electronic data.
In practice, when verifying the authenticity of electronic data, practitioners first check the media, then the format, and finally the content of electronic data.
As for authentication, it is more difficult to implement it in the context of electronic evidence. The Chinese judicial system has not adopted authentication as a mandatory procedure to determine the admissibility of all evidence. However, authentication is widely used in the context of electronic evidence.
The following authentication methods are accepted in China:
- the first method is to verify the authenticity of electronic data by verifying the supply chain;
- the second method is to assume the authenticity of electronic data by verifying special identifiers such as an electronic signature and an electronic certificate;
- the third method is to prove the authenticity of electronic evidence by checking its integrity;
- The fourth method is to verify the authenticity of electronic data by receiving reports from forensic experts, since the testimony of a qualified digital evidence specialist helps in the work of judges.
The authentication of electronic data depends on the reliability of the methods used to generate, store or transmit data, the methods used to preserve the completeness of the content, and the methods of distinguishing recipients.
However, there are some problems with Chinese authentication rules. For example, the main method is based on proof of supply chain. The verification of the supply chain is mainly based on various handwritten proofs. The low percentage of witness testimony in Chinese courts directly affects the authentication procedure of electronic evidence.
Another problem is that electronic evidence in violation of authentication rules can still be presented to the court through "remedial measures" such as "reasonable explanation". Some problems have been solved in the course of technology development.
For example, NetEase, an Internet service provider in China, has launched Honest Mail, the first email authentication and notarization solution. It is claimed that Honest Mail solved the problem of authenticity of traditional e-mail by connecting a third party controlling the e-mail database, which the notary office has access to.
Based on the initial data from this database, the notary office can at any time offer the preservation of evidence in electronic form by notarization. Thus, it is possible to directly verify the authenticity of e-mail as electronic data <27>.
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<27> Hejun Deng (2015). Lun gongzhengyou de zhengju zhengshixing ji dui dianzi shuju jianzhen guize de qishi [The Authenticity of Gongzhengyou and Its Implication upon Authentication Rules of Electronic Evidence]. Gansu shehui kexue. Vol. 4. No. 5. 2015. P. 179 - 182.
This practice appears to provide a potential solution to electronic data authentication rules. However, some problems cannot be solved even with the development of technology.
For example, since a user can leave information without tracking its real identification in the context of cloud technologies, it is difficult to collect, extract, analyze or identify such data. Another example: in the context of a VPN or VPS, it is difficult to verify the IP address because it is constantly changing <28>.
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<28> Ming Hu (2019). Dianzi shuju zai xingshi zhengju tixi zhong de dingwei yu shencha panduan guize: jiyu wangluo fanzui anjian caipan wenshu de fenxi [The Standing of Electronic Data in Criminal Evidence System and the Rules on Examination and Evaluation: An Analysis Based on Judgements of Counterfeit Commodity Related Cyber Crimes]. Faxue Yanjiu. Vol. 41. No. 2. 2019. P. 172 - 187.
Technological progress makes it possible to solve many issues, but also creates new problems. This is probably the most difficult function of electronic evidence experts, since the testimony of a qualified digital evidence specialist helps in the work of judges.
B. Legality of electronic data and exclusion rules.
The general requirement is to collect all evidence by a competent entity, using authorized methods and in accordance with the established procedure. Electronic evidence is no exception. Since electronic evidence is easily copied, modified and deleted without leaving tangible traces, it is especially important to know whether the process of collecting electronic evidence complies with the procedure established by law in order to ensure the authenticity of electronic data.
Receipt, confirmation, delivery and storage of electronic evidence must comply with the law. The 2016 regulations provide for some priority requirements when verifying the legality of electronic data, most of which relate to whether electronic data is collected in accordance with the procedure and whether it complies with technical standards.
The provisions of the GNP on the handling of cybercrime cases by the People's Procuratorates (2021) contain a more comprehensive provision on the verification of the legality of electronic data, which stipulates that in order to verify the legality of electronic data, attention should be paid to the study of the following issues:
1) Are the methods and processes of collecting, receiving and storing electronic data well regulated;
2) have the legal procedures of inquiry, crime scene inspection, seizure, receipt and freezing been completed;
3) Are the evidence collection protocols complete, such as crime scene inspection protocols, search protocols and seizure protocols;
4) does the participation of evidence collectors, witnesses and owners (or suppliers) comply with the law, and if for objective reasons there is no signature or seal of the witness or owner (or supplier), are the reasons explained;
5) Are simultaneous audio and video recordings being made in accordance with the relevant provisions;
6) whether the electronic data collected and extracted abroad comply with the requirements of international (regional) judicial cooperation and relevant laws.
The consequence of not passing a legality check is usually the concealment of evidence. However, Chinese law applies a discretionary model of excluding electronic evidence. According to the Provisions of 2016, electronic data will be excluded only in the most serious circumstances, in particular:
1) if the electronic data is forged or its authenticity cannot be determined;
2) electronic data has been added, deleted or changed, which affects the authenticity of electronic data;
3) any other circumstances in which the authenticity of electronic data cannot be guaranteed.
Electronic evidence, which should be excluded, has a common feature - a procedural violation has affected the authenticity of electronic data.
Another paragraph of the same Provisions concerns the admissibility of electronic data with minor procedural violations, which states: "If there are shortcomings in the procedure for collecting or withdrawing electronic data, after their addition and correction or reasonable explanation, such electronic data may be accepted; if no addition or correction has been made or no reasonable explanation has been given, such electronic data is unacceptable."
Minor procedural violations are considered:
1) Electronic data cannot be transmitted in a sealed state;
2) the protocol or list does not contain the signature or seal of the investigators, the owner (supplier) of electronic data or the witness;
3) the name, category and format of the electronic data are not clearly indicated;
4) are there any other disadvantages.
In general, the exclusion of illegally obtained electronic evidence in China is not aimed at ensuring the legality of evidence collection, but at guaranteeing the authenticity of electronic evidence.
c. Relevance of electronic data.
According to the provisions of the GNP on the consideration of cases of cybercrime by the People's Procuratorates (2021), the verification of the relevance of electronic evidence should include issues of compliance of electronic data with the facts of the case and the relevance of electronic data and the medium on which they are stored for the party to the case.
This means that in the context of electronic evidence, relevance refers not only to the relationship between evidence and fact, but also to the relationship between electronic evidence (especially the media) and the party to the trial.
The peculiarity of checking the relevance of electronic data is that it should also be proved that the accused of committing a crime is in fact the same person who used the online identifier and the corresponding information carrier to commit crimes.
The 2016 Regulations contained a specific provision on how to verify the identity of online identification and the real identity of a criminal suspect or accused, as well as how to verify the correspondence between a criminal suspect or accused of committing a crime and the information carrier.
The first can be assessed by checking the relevant IP address, records of network activity, attribution of Internet terminals, testimony of the relevant witness, as well as the confession and argumentation of the suspect or accused of committing a crime. The latter can be assessed by checking the testimony of the relevant witness, as well as the confession and argumentation of the suspect or accused of committing a criminal offense.
Some empirical studies have shown that relevance plays a more important role in determining the acceptability of electronic evidence than legality. Courts often exclude electronic evidence more because of relevance issues than because of legality issues. <29>.
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<29> Pinxin Liu (2017). Dianzi zhengju de guanlianxing [Relevancy of Electronic Evidence]. Zhongguo jianchagua. Vol. 4. No. 9. 2017. P. 75.
Again, the ultimate purpose of the relevance check in the context of electronic evidence is not just to make sure that the electronic data can confirm the facts of the case, but also to verify the authenticity of the electronic data.
In addition, a comparison should be made with the previously mentioned three aspects of the consideration of the admissibility of evidence in China and other jurisdictions. Common law jurisdictions usually pay special attention to the issue of admissibility when it comes to electronic evidence. The general opinion in common law countries is that the rules of evidence apply equally to evidence presented in electronic format and on paper <30>.
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<30> Lorraine, 241 F.R.D. at 538; Jonathan D. Frieden & Leigh M. Murray. The Admissibility of Electronic Evidence under the Federal Rules of Evidence, 17 RICH. J.L. & TECH. 5, 2 (2010).
The rules governing the admission of documentary evidence require compliance with six criteria, such as relevance, authenticity, reliability, reliability (evidence obtained from a verified source), the rule of best evidence/original evidence, and evidentiary value versus the possibility of causing damage.
Since information in electronic form is, in fact, documentary evidence, such evidence is subject to three checks before it is accepted for the purposes of judicial proceedings: authentication, the rule of best evidence and the reliability of evidence must be implemented. In contrast, Chinese legislation on electronic evidence places more emphasis on regulating the collection and examination of such evidence.
Of course, the issue of the admissibility of evidence is not a key one for the Chinese legislator. Chinese law draws attention to three important aspects that are also found in common law jurisdictions.
First, the authentication of electronic evidence in China is more focused on authenticity in essence than on superficial format requirements.
Secondly, in most English-language publications, it was considered that the rule of best proof has become less important for electronic evidence, since the original proof has a slight advantage over the derivative proof if the identity can be verified <31>.
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<31> The Uniform Electronic Evidence Act Revisited (by Archivists) - Slaw. (The notion of an 'original' document, as contemplated by the "best evidence" rule, was not helpful in the electronic world, being either meaningless or irrelevant to the purpose of the rule.)
However, Chinese courts still prefer "originals" and "hard copies" and trust electronic evidence. This is evident both in legislation and in practice.
Thirdly, China has not adopted a rule on the reliability of the source of evidence. Thus, electronic data does not have to pass the source reliability test to be acceptable to ships.
The use of electronic evidence in civil cases. Last but not least, the rules for the use of electronic evidence in civil cases are widely discussed. An interesting paradox is that there are fewer rules in civil law regarding electronic evidence than in criminal law. However, this does not mean that electronic evidence is rarely used in civil cases in China. The practice of civil proceedings proves the opposite.
Let us briefly consider the relevant provisions in the Rules of Evidence in Civil Cases of 2019.
First, Article 14 defines the scope of recognized electronic data in civil proceedings. They include the following information and digital documents:
1) information published on network platforms such as web pages, blogs, microblogs, etc.;
2) communication information in network application services such as SMS, email, instant messages and groups in messengers;
3) information including user registration, identity authentication, electronic trading records, communication records and login logs;
4) electronic documents, including documents, images, audio and video recordings, digital certificates and computer programs;
5) other information that is stored, processed and transmitted digitally and can confirm facts relevant to the case. The definition and scope of electronic data in civil cases are almost the same as in criminal cases, since they leave the scope of application open.
Secondly, section. Article 15, paragraph 2, provides for the "best evidence rule" for electronic evidence in civil cases. In cases where the parties use electronic data as evidence, the original should be provided. "Original" here means "a duplicate identical to the original made by the electronic data manufacturer, or a printout directly from the electronic data or any other display, identifiable output medium."
This provision contains a flexible definition of "original" and could be an excellent example of a "best evidence rule" with reservations in the context of electronic evidence.
Thirdly, Article 23 requires that the owner of electronic data provide the original storage medium on which the court examines and collects electronic data. If the original media cannot be provided, duplicate electronic data is allowed. The origin and manufacturing process of duplicates must be indicated in the protocol. This provision corresponds to the methods of collecting and seizing electronic data in criminal cases.
Moreover, the 2019 Rules of Evidence in Civil Cases contain two articles concerning the verification of the authenticity of electronic data. Article 93 lists the factors that the court must take into account when examining and evaluating electronic data (but not limited to them):
1) Is the hardware and software environment complete and reliable in which electronic data is generated, stored and transmitted;
2) is the same environment in a normal working condition, and if not, has this affected the generation, storage and transmission of electronic data;
3) Are there effective monitoring and verification tools in the same environment to prevent errors;
4) has the electronic data been fully stored, transferred and seized, and are the methods of preservation, transfer and seizure reliable;
5) Is electronic data generated and stored during normal transactions;
6) is the entity that stores, transmits or accepts electronic data competent;
7) other factors affecting the completeness and reliability of electronic data.
Article 93 also allows the court to use methods such as forensic examination or questioning to examine and assess the authenticity of electronic data.
Finally, Article 94 provides for circumstances in which electronic data can be considered authenticated, unless otherwise follows from the evidence provided. Such circumstances include:
1) unfavorable electronic data submitted or stored by one party;
2) electronic data provided or verified by a neutral third-party platform;
3) electronic data obtained in the course of ordinary business activities;
4) electronic data stored in archives;
5) electronic data stored, transmitted and received in ways agreed upon by both parties;
6) electronic data certified by a notary.
Conceptual foundations of the study
The article is based on the following: it provides a general introduction to the legal framework of electronic evidence in China, examines some theoretical discussions on electronic evidence and examines how China regulates the collection and examination of electronic evidence in criminal and civil cases.
First. With regard to the definition, category and features of electronic evidence, this document uses the legislative definition contained in the Provisions of 2016, which states in article 1: "Electronic data is data that is generated during the initiation of a case, stored, processed and transmitted digitally and can confirm/refute the facts of the case. Electronic data includes (but is not limited to) the following information and electronic documents:
1) information published through network platforms such as a web page, blog, microblog, Moments, Message bar and network drive;
2) Communication information in network application services such as SMS, email, instant messages and messenger groups;
3) Information including user registration information, identity authentication information, electronic trading records, communication records and login logs;
4) electronic documents, including documents, photographs, audio and video recordings, digital certificates and computer programs."
In order to avoid confusion, the same paragraph further clarifies that "the testimony of a witness, the victim's statement, as well as the confession and arguments of the suspect in the commission of a crime or the accused, recorded in digital form, and other evidence are not electronic data."
It is obvious that electronic data is independent evidence in the legal context of China, and not any information in electronic form. This document attempts to address the key issues of collection, seizure, examination and adjudication of electronic evidence in criminal and civil cases, identify weaknesses in current legislation and put forward some legislative proposals for future reforms.
In addition, in this article, electronic data is interchangeable with electronic evidence, digital data or digital physical evidence was first included in criminal law acts as a legal term.
When considering which category of evidence electronic evidence belongs to, there are four doctrines:
1) Electronic evidence refers to audiovisual materials;
2) electronic evidence refers to documentary evidence;
3) Electronic evidence belongs to various traditional categories of evidence, which are called the doctrine of mixed evidence;
4) Electronic evidence refers to a new form of evidence called the doctrine of independent evidence.
The doctrine of independent evidence prevails. Most legislation regarding electronic evidence is based on this doctrine. The Civil Procedure Act 2012 listed electronic evidence as an independent category of evidence in Article 63(5), and the Criminal Procedure Act 2012 listed electronic evidence along with audio-visual materials as a new form of evidence in Article 48(8).
The definition of electronic evidence in the 2016 Regulations emphasized that "electronic data is data that is generated during the initiation of a case" and excluded traditional evidence in digital form as electronic evidence, which clearly contradicted the doctrine of mixed evidence. It was believed that electronic evidence belonged to various traditional categories of evidence, rather than to one specific category.
Second. The collection of electronic evidence in Chinese criminal cases is one of the most important issues. Several aspects were fully covered in the previous part. The conclusions can be as follows:
1. The document states that the competence of the collector should act as a factor in the admissibility of electronic evidence. Other factors determine which category of evidence electronic data belongs to and how serious a procedural violation would be, since most Chinese police officers do not have the appropriate professional knowledge and have to rely on technical specialists to collect electronic evidence. The MOB Rules on Obtaining Electronic Data as Evidence (2019) (the MPS Rules 2019) take this point of view into account, stipulating that it is necessary here that professional technicians are appointed or hired to collect electronic data under the supervision of investigators.
2. Electronic data processing methods should be verified by recovery, hacking, counting, correlation and comparison after their collection. If necessary, an investigative experiment can be conducted to sort the electronic data so that it can be better displayed. The 2016 regulations require that the process be recorded on video, a write-protected device be used to connect media, and backup copies of electronic data be created during verification.
In cases where it is difficult to identify any particular problem related to electronic data, the forensic identification institution should issue an expert opinion. The MOB 2019 Rules provide for three stages of electronic evidence collection, i.e. collection or seizure, inspection or investigative experiment, and forensic evaluation of electronic data.
3. Special rules should be adopted to guarantee the collection and seizure of electronic data. The evidence will not violate the data owners' rights to property and privacy. The search and seizure of electronic data can be divided into two stages: the seizure of a physical electronic data carrier and the subsequent search for data stored on it. The first step carries the risk of violating property rights, and the second step carries the risk of violating confidentiality if there are no specific restrictive rules for each step.
The third. The decision on the evaluation of electronic evidence is made by the judge. Judges' attitude to electronic evidence is closely related to their understanding of modern computer technology; i.e., less technically knowledgeable judges were more cautious about electronic evidence than their more technically literate colleagues.
Despite the fact that electronic evidence is acceptable as physical evidence, its weight often remains less than other categories of evidence, such as documentary or physical evidence. It is believed that electronic evidence should be used in combination with other evidence.
In the case of electronic evidence, the court requires the parties to provide other evidence confirming the authenticity of electronic evidence, its originality, reliability or other characteristics. Otherwise, electronic evidence will be denied evidentiary value. In civil cases, electronic evidence is often confirmed by contacting a notary with a request to notarize it.
Article 69 of the Chinese Code of Civil Procedure stipulates that notarized evidence should be relied upon as facts, except in cases where there is evidence refuting notarized evidence.
Thus, the parties usually seek notarization of electronic evidence to ensure that such evidence is generally accepted as evidence. With the advent of Internet courts in China, blockchain-based evidence is officially accepted in these courts. According to technical experts, blockchain technology will increase the evidentiary value of electronic evidence. This new area is beyond the scope of the purpose of this article, but clearly deserves further study.
Last but not least, there are rules for the use of electronic data in civil cases, but they are too insufficient, given the growing volume and increasing prevalence of electronic data in civil litigation. Additional legislation is needed to cope with the rapid growth in the number of online litigation.
Conclusion
There is no denying that electronic evidence will become the most important and popular evidence in court in the future, when online hearings become more widespread and mainstream.
However, since the progress of science and technology is always a double-edged sword, the rapid and continuous development of information technology will create both opportunities and challenges for the use of electronic evidence in court proceedings. The reasonable use of electronic evidence depends on cooperation between lawyers and technology experts.
With increasing knowledge and experience, we should neither be too skeptical nor too trusting about the evidentiary value of electronic evidence. We don't need to create a set of completely new rules for the admissibility of electronic evidence, because most rules of evidence still apply to them.
