Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Tuesday, March 28, 2017

China grants self carte blanche to hack into foreign servers in criminal investigations

Check out this recent post from the Lawfare blog. I've read the regulations to which it refers, and the post describes them accurately. Frankly, if I had given the matter any thought before this, I would have assumed that Chinese investigative authorities were already doing this whenever they wanted to.

Note to the "everybody does it" chorus: The blog post is also accurate in stating that this is not the normal practice of domestic police authorities, including in the United States; they seek permission from the foreign sovereign the same way they would seek permission for sending agents abroad to rifle through someone's file cabinet. Not that China necessarily has to follow the crowd in everything, but China would undoubtedly consider it the gravest violation of its sovereignty were foreign criminal investigators to hack into Chinese servers without permission in a search for evidence.

Here's the relevant language from Art. 9 of the regs:

具有下列情形之一,无法扣押原始存储介质的,可以提取电子数据,但应当在笔录中注明不能扣押原始存储介质的原因、原始存储介质的存放地点或者电子数据的来源等情况,并计算电子数据的完整性校验值:

  (一)原始存储介质不便封存的;

  (二)提取计算机内存数据、网络传输数据等不是存储在存储介质上的电子数据的;

  (三)原始存储介质位于境外的

  (四)其他无法扣押原始存储介质的情形。

  对于原始存储介质位于境外或者远程计算机信息系统上的电子数据,可以通过网络在线提取

  为进一步查明有关情况,必要时,可以对远程计算机信息系统进行网络远程勘验。进行网络远程勘验,需要采取技术侦查措施的,应当依法经过严格的批准手续

https://lawprofessors.typepad.com/china_law_prof_blog/2017/03/china-grants-self-carte-blanche-to-hack-into-foreign-servers-in-criminal-investigations.html

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