07

2021

-

09

Academic | Liu Zhiqiang: On the Reconstruction of Big Data Investigation and Human Rights Protection Norms System

Big data investigation greatly improves the efficiency of case investigation, but at the same time, it also brings the alienation of human rights protection. To solve this problem, it is necessary to correctly deal with the relationship between the three types of human rights protection, and reconstruct the "trinity" human rights protection standard system of big data investigation.


Summary: Big data investigation has greatly improved the efficiency of investigating cases, but at the same time, it has also brought about the alienation of human rights protection. To solve this problem, it is necessary to correctly handle the relationship between the three types of human rights protection and reconstruct the "three in one" human rights protection normative system for big data investigation. Big data investigation, while properly arranging the illegality of human rights protection in the sense of purpose, needs to enhance the level of substantive human rights protection. On the basis of adhering to the value of procedural human rights protection, it is necessary to clarify the structure of human rights protection system, establish cornerstone and standards, and strengthen dual functional norms to regulate human rights protection in the sense of purpose, in order to reconstruct the "trinity" human rights protection normative system of big data investigation. At the same time, the three types of human rights protection have been functionally differentiated, so that the purpose, significance, and illegality of human rights protection in big data investigation are constrained by the dual functional norms of substantive justice and procedural justice human rights protection. The improvement of substantive justice human rights protection and the adherence to procedural justice human rights protection are not only the way and foundation to achieve the purpose, significance, and human rights protection of big data investigation, but also the maintenance of substantive justice in big data investigation The legal norms of the program itself.

 

Keywords: Big Data Investigation Purpose Meaning Entity Meaning Procedural Meaning Human Rights Protection

 

 

(The article annotations have been omitted)

1、 Question raising

 

(1) Problem oriented

 

At present, the legal community, especially in the field of criminal investigation, has shown a "prominent" trend in research on big data investigation. Compared with traditional investigation, the "novelty" of big data investigation in investigation methods mainly manifests in case analysis methods and investigation capabilities. Big data investigation not only changes traditional investigation concepts and ideas, but also makes it easier to identify the patterns of crime. With the help of big data to collect intelligence, big data can also play a unique advantage in investigating and controlling key personnel and collecting intelligence. Big data investigation focuses on investigation as the center of evidence collection, and there is no effective and systematic regulation on the method and scope of evidence collection. Even though big data investigation makes it easier to identify the accused and obtain evidence, which is beneficial for punishing crimes, all case facts still need to be based on court questioning. The question is whether the massive evidence of big data investigation can pass the "three nature" cross examination centered on trial. In the Criminal Procedure Law, strictly speaking, human rights protection refers to the protection of the legitimate rights of the accused, which is referred to by the academic community as the human rights protection model of procedural priority and substantive follow-up. This article is divided into three types of human rights protection: purposeful human rights protection, substantive human rights protection, and procedural human rights protection. Big data investigation involves extracting massive amounts of information or credit from the technical level to achieve the purpose of solving cases. It involves not only the protection of human rights in terms of purpose, but also the realization of substantive and procedural human rights protection. The former belongs to the protection of human rights for purposes beyond the law, while the latter belongs to the protection of substantive and procedural human rights within the law. How to ensure that in the three types of human rights protection mentioned above, big data investigation not only properly deals with the purpose of protecting people's rights outside the law, but also avoids infringing on substantive citizen rights within the law, while also adhering to the value of procedural human rights protection, so as not to lead to human rights paradoxes caused by big data investigation. Therefore, reconstructing the "trinity" human rights protection normative system for big data investigation is the problem orientation of this article.

 

(2) The necessity of reconstructing the normative system for human rights protection

 

In China, traditional investigative measures such as search, seizure, freezing, etc. are all internal control methods. Before implementing an investigative measure, approval from the head of the investigative department is required, and generally there will be no problems. After the update of investigation methods, the original responsible person may lack knowledge in data and technology, which may make it difficult to make effective and accurate judgments. However, they may have to make decisions, resulting in unscientific and unreasonable decision-making. In this self control mode, it is obvious that effective internal control cannot be obtained and external forces need to intervene to achieve power constraints and balance. This requires paying attention to the realization of legislative objectives, ensuring that substantive justice and procedural justice fall between every citizen, which is also an essential requirement of China's comprehensive concept of rule of law. Under the dual pressure of both purpose and substantive human rights protection, if big data investigation cannot adhere to procedural justice, then procedural human rights protection may become a victim on the path of the rule of law. It should be noted that there is also a contradiction between the complexity of data and judicial accuracy in big data investigation. Data analysis may go wrong, algorithms may discriminate, evidence relevance and other proof rules may deviate. Without a complete system of human rights protection norms, the above situation will form an inextricable cycle, which will affect the progress of rule of law in China. Reconstructing the normative system for human rights protection in big data investigation is one of the methods to solve this cycle. Under the dual requirements of purpose and entity human rights protection, procedural human rights protection should be firmly placed at the forefront. It is necessary for the "trinity" to make the three parties restrain each other, hinder each other, and complement each other.

 

(3) Analysis of Academic History and Problem Revelation

 

The research on big data investigation in the academic community mainly focuses on two aspects: investigation mode and investigation methods, which are reflected in the value and problems of big data investigation itself, as well as solutions. In a word, some scholars have constructed the investigation model of big data in the future. In order to find suspect by using the information carried by big data, use big data to analyze various data sources, grasp the criminal trend, and thus prevent crime; Utilizing big data to optimize the allocation of investigative resources and improve investigative efficiency; Some scholars also believe that "big data is just a technology, and the big data-driven investigation model is a transcendence of traditional investigation models. However, its effective mode should be the perfect combination of big data, investigation intuition, and experience; some scholars believe that Our traditional legal framework has a certain lag in the legal attributes of big data investigation, which is reflected in the lack of clear definition of the legal attributes of big data investigation, the inability to distinguish the relationship between data content and metadata, and the inadequate implementation of the procedure for initiating investigation. To legally control the new thing of big data investigation, it is necessary to adopt a dual path of specific standardization of investigation and standardization of data processing. From the above academic perspective From a historical perspective, research has mainly focused on improving the efficiency of big data investigation and constructing criminal norms for big data investigation. However, research on big data investigation and human rights protection normative systems is relatively rare in the academic community, and there is no demonstration of achievements in this area. For big data investigation, the academic community used to conduct research solely on a certain issue, rather than conducting a standardized and systematic study from the perspective of the "trinity" of purpose meaning human rights protection, entity meaning human rights protection, and procedural meaning human rights protection. Therefore, based on the above analysis, this article proposes to comprehensively address the issue of reconstructing the normative system for human rights protection by examining the relationship between big data investigation and three types of human rights protection.

 

2、 Properly handling the illegality of human rights protection with purpose and significance

 

The purpose of criminal litigation is to ensure the correct implementation of criminal law, punish crimes, protect the people, safeguard national security and social public safety, and maintain socialist social order. Its ultimate goal is to ensure national security and social public safety, and maintain socialist social order. As a crucial part of criminal proceedings, investigation is one of the most important ways to uncover the truth and has a significant impact on subsequent prosecutions and trials. Therefore, the protection and regulation of investigative power has become the center of criminal litigation. As a judicial application of new technology, big data investigation has a profound impact on the breadth and depth of investigation under the influence of criminal policies such as "anti crime and anti evil". It has a positive significance for human rights protection. However, the significance of human rights protection for the purpose of big data investigation is always broad and vague, without specific operability. At the same time, it has also produced some negative effects in the investigation process, which requires dialectical analysis and regulation.

 

(1) The Value of Human Rights Protection in Purpose and Meaning

 

In big data investigation, the primary purpose is to punish crimes and protect the people, which is also the main application field of big data investigation at present. For the big data investigation of individual cases, it mainly relies on data analysis, character search, motivation identification, etc., which has significantly improved the accuracy and efficiency of cracking down on crime. Its value is self-evident, but it also hides various risks, requiring effective legal regulation of big data investigation. In other words, the purpose of human rights protection is often suspected of infringing on the rights and interests of non parties outside of criminal cases. The reason for this is that this concept of human rights protection is rooted in the purpose of criminal litigation, with a focus on maintaining national security and social order.

 

One of the main values of big data investigation work is reflected in the prevention of crime and the stability of social order. Predictive thinking is the core thinking in the era of big data, and being able to predict the future is one of the important values of big data technology. In this data age, we can use the interconnected relationships of all things to make data predictions and predictions about a certain thing, behavior, or type of behavior. Similarly, in the investigation activities, investigators can conduct big data simulation calculations on unspecified criminal acts that have occurred and the characteristics of suspect, and can accurately predict what types of criminal acts will occur in a certain space in a certain period of time, so as to effectively prevent possible criminal acts. In China, the Beijing Huairou Public Security Bureau has established a crime data analysis and prediction system, which efficiently completed the security work of the 2014 APEC event. Through standardized classification and import into the system database, big data is used, map annotations are used, and multiple prediction models are used to automatically predict the probability and types of crimes that may occur in a certain period of time and region in the future, achieving good results. So the purpose of big data investigation is to protect human rights and has positive significance.

 

(2) The Alienation of Human Rights Protection in Purpose and Meaning

 

The protection of human rights in a narrow sense is limited in terms of human rights value. Although human rights protection has corresponding positive significance in the sense of purpose, it deviates from the narrow context of protecting the legal person's rights in criminal proceedings. The purpose of human rights protection is to protect the people from a global perspective by punishing crimes. However, this can easily overlook the protection and relief of individual rights, and even violate human rights under the banner of protecting human rights. This allows the state public power to arbitrarily intervene in the private space of citizens, and actually infringe on individual rights for an uncertain purpose. The relationship between the people and citizens, as well as between the collective and the individual, should essentially be a relationship between the whole and the individual. These two concepts are both contradictory and unified. The long-standing misconception of value orientation, which blindly emphasizes individual rights and interests, can harm collective interests. However, in a real collective, the essence of collective interests is a generalized collection of individual interests. The most essential feature and foothold of collective interests is to ensure and promote the comprehensive, free, and full development of everyone within a collective. Therefore, big data investigation needs to properly handle the political and normative relationship between the purpose and significance of human rights protection. In other words, big data investigation needs to eliminate the interference of extralegal attributes and focus on legal norms. Even if big data investigation wants to protect the collective interests of the general public, it still needs to protect the rights and interests of every citizen. This is not only a principle that must be adhered to in individual cases, but also a concept that collective interests must adhere to. Only by returning to norms and focusing on protecting every citizen's rights can big data investigation truly maintain national security and social order from a normative perspective.

 

3、 Enhancing the level of substantive human rights protection

 

Entity justice, from the general theory of Roman law, is the result of the distribution of entity rights and obligations based on the social distribution system. Under unequal social conditions, justice is what Rawls calls distributive justice when this result can bring compensatory benefits to the least benefited individual in society. In the field of criminal litigation, substantive justice has different expressions. Some scholars believe that "substantive justice refers to the value standards that people must follow when determining the rights, obligations, and responsibilities of entities, Entity justice has legitimacy and the widest public recognition. Moreover, in addition to the independent legal justice of the procedure itself, procedural justice ultimately pursues substantive justice. In this regard, enhancing the level of human rights protection for the substantive significance of big data investigation can effectively improve case handling efficiency and achieve substantive justice.

 

(1) Improve the accuracy of big data investigation

 

Firstly, by regulating the content of data, accurate data can assist in accurate justice. In big data investigation, data is the most fundamental thing, and the overall accuracy is ensured by improving the overall quality of data and improving the accuracy of data model parameters through screening. Strictly treat every data analysis task throughout the entire investigation process to ensure the highest level of rigor in all aspects. In the data collection process, the comprehensiveness of data is the primary consideration. Big data reflects "big", and all case related data must be collected in place. In terms of the subject matter of the case, investigators should have a comprehensive and in-depth understanding of the various needs of the investigation task, and use this understanding to select the data range and specific algorithms. In the data generation process, investigators need to verify the legitimacy of the data source channels and the reliability of data quality, select the correct algorithm for deep data analysis, and choose multiple algorithms to mutually verify and ensure the authenticity and reliability of the data results. Secondly, algorithms are a key influencing factor in data results, and regulatory algorithms are necessary procedures for optimizing big data investigation. Discrimination in algorithms is a hot topic in the field of big data. In addition to adjusting algorithms through technological means, some scholars advocate adding various factors such as human morality, values, and laws to specific algorithms and establishing a manual review mechanism. Some scholars have also proposed that an artificial intelligence regulatory agency should be established to review the security of algorithms. The optimization of big data investigation has only one purpose, enabling it to improve investigation efficiency, find the most accurate evidence in complex social environments to achieve substantive justice, and make due contributions to the protection of substantive human rights.

 

(2) Enhancing the level of substantive human rights protection

 

How can big data investigation, in the context of trial as the center, ensure accurate and timely identification of criminal facts, punish criminals, and ensure that innocent individuals are not held criminally accountable from a substantive perspective, so as to achieve accurate characterization and not waste or indulge? In the context of big data, only by optimizing the relationship between big data investigation and substantive human rights protection can we reconstruct the human rights protection system. Firstly, the application of big data investigation technology can effectively determine objective factors such as population and traffic in crime prone areas through data aggregation and analysis, reasonably arrange personnel allocation, and improve resource allocation of crime prevention mechanisms. At the same time, the use of big data technology analysis has also changed the previous dilemma of investigative agencies requesting data from various relevant departments such as banks, telecommunications companies, and other large enterprises during the investigation process, making investigative activities more practical and convenient. So establishing a data sharing platform, creating and improving data control mechanisms, and transforming from the original single line investigation mode to the collaborative investigation mode while ensuring that data is not maliciously utilized, is the development trend of big data investigation. Secondly, big data analysis and judgment contribute to the scientificity and convenience of evidence collection, and improve the efficiency and ability of criminal investigation departments in handling cases. In the process of data analysis by investigative agencies, traditional investigative methods rely on the subjective experience and judgment of investigators, which are then transformed into actual evidence collection and retrieval. The application of big data investigation methods relies on technical algorithms for analyzing relevant case information. The diversity of algorithms enables in-depth analysis of information based on precise positioning of case information. By conducting diversified analysis on a large amount of data with low correlation, important investigative clues can be provided to help the investigation department quickly locate key points of the case. The presentation of the data will be more diverse and intuitive, such as automatically generating charts, animations, etc., which can effectively improve the efficiency of case solving. Thirdly, the objective authenticity and comprehensiveness of the data will help to analyze the case comprehensively and thoroughly, reduce the dependence on the confession of the suspect, and help to achieve real case justice. Under the traditional investigation mode, the confession of the accused is an important evidence and investigation basis. In this reliance on confession, it will inevitably pose a threat to the personal and mental safety of the accused, leading to insufficient protection of the justice of the entire case. Data exists objectively and does not transfer based on human will. While ensuring that the analysis process and methods are free of errors and biases, the response of data to cases is the most authentic and comprehensive, which has practical significance for the realization of justice.

 

To enhance the human rights protection relationship of the substantive significance of big data investigation, it is not only necessary to ensure the effectiveness of big data investigation through specific regulations on data content and algorithms, so that innocent defendants can get rid of litigation in a timely manner and not be pursued by public power, but also to make the truly guilty people receive the punishment they deserve, punish them as if they were guilty, and achieve substantive justice. It should be pointed out that if we blindly emphasize substantive justice and let the procedure serve the entity, it will also partially deviate from the context of the protection of legal person rights in criminal proceedings and negate the independent value of criminal proceedings. In the substantive sense, human rights protection is a subjective human rights protection that neglects the operation and protection of the objective attribute of procedural value. Therefore, the entity itself is a human rights protection that cannot be independently self proven and self evaluated. Therefore, to reconstruct the normative system for human rights protection in big data investigation, on the one hand, it is necessary to improve the accuracy of substantive human rights protection, and on the other hand, it is also necessary to incorporate substantive human rights protection into criminal procedures for regulation, in order to achieve and test its effectiveness.

 

4、 The Value of Adhering to Procedural Significance and Ensuring Human Rights

 

Big data investigation is a criminal investigation method that emerged in the context of the rapid development of modern society. Under the guidance of internet technology, a new investigation mechanism has emerged. On the one hand, internet technology has updated investigative methods, creating opportunities for past criminal procedures and investigative activities, and on the other hand, it has also posed enormous challenges. Against the backdrop of continuous innovation in investigative techniques and modes, there are occasional incidents of suspected infringement of civil rights outside and within the law in investigative activities. In the process of criminal litigation, procedural rule of law mainly refers to the construction and improvement of procedural legal systems for law enforcement and justice to achieve the goal of national rule of law, emphasizing the rationalism of the law and the "visible justice" procedure to complete investigative activities. Under the background of comprehensive rule of law, criminal cases are centered on trial. How to solve the legitimacy of investigation, evidence collection and technical investigation in criminal judicial investigation activities in the procedural sense, so as to ensure the human rights protection of suspect in the procedural sense, is a test of rule of law in China. Only by adhering to the human rights protection of the significance of big data investigation procedures and adhering to the basic value concept of procedural justice, can a balance be achieved between the pursuit of efficiency and justice.

 

(1) Big data investigation needs to be constrained by rights norms

 

With the rapid development of the internet society today, citizens' awareness of their rights has awakened earlier and the scope of awakening has become wider. Citizens have higher requirements for the confidentiality of their private lives, the protection of personal information, and the tranquility of their personal lives. The power of investigation, as a quasi judicial power of the state, is mandatory, and one of the core contradictions of investigation procedures is how to balance the relationship between privacy rights and investigation rights when they conflict. In the face of national public power, privacy rights require investigation agencies to abide by a humble attitude. In the era of highly developed internet, society is constantly developing towards digitization, and all human activities are recorded by the internet. Whether it is physical space or virtual space, more and more information is being digitized, and each piece of information fragment forms a data ocean. This data ocean is the big data society. The individual use of these data may be legal and unrelated to privacy, but when aggregated for further analysis, it may be suspected of infringing on citizens' privacy, which is also beyond the regulation of traditional privacy laws. In the era of big data, our traditional concept of "personal privacy" is no longer sufficient to cover the content of privacy itself. The broader scope of privacy content requires investigation agencies to collect citizens' "big data", and privacy, as a human rights attribute, must comply with clear legal procedures, use what methods, collect what content of data, and make prior legislative restrictions on power, Only by doing so can we better ensure that our rights are not violated recklessly. Of course, privacy is not an absolute civil right, but a relative right, "it is an information management rule. The right to privacy will not refuse the use of personal privacy data by investigative agencies, provided that legal procedures are followed and there is no subjective bias or use of personal data for "monitoring" or "threatening" behavior. This means requiring investigation agencies to be fair, impartial, and supervised, which is the objective legal regulation value of privacy rights for big data investigation. Civil rights have dual attributes, which are both subjective rights and constrained by the objective legal value of public power. In other words, privacy is also a direct and effective right to restrict and constrain big data investigation behavior. Daning believes that "due process is a variety of methods recognized by the law to ensure the purity of daily work." This means that in the process of big data investigation, procedural significance, human rights protection, and standardization should always be implemented to ensure that the direction of "purity" in big data investigation is not biased.

 

(2) Big data investigation needs to implement the principle of presumption of innocence

 

From the perspective of litigation procedures, the legalization of criminal investigation, also known as the legalization of investigation activities, refers to the professional investigation subject strictly following the modern concept of rule of law when carrying out investigation activities, conducting investigations in accordance with the law within the legal framework, in order to achieve the legalized operation of discovering the truth of the case and achieving fairness and justice. In order to achieve this goal, it is necessary to follow certain basic principles and the concept of the rule of law. The two fundamental theories in the field of criminal justice are the principle of legality in substantive law and the principle of presumption of innocence in procedural law. These two principles constitute two standards in judicial practice. The principle of presumption of innocence is the first principle followed by modern Western countries under the rule of law, and it is also a fundamental human rights principle recognized and protected by international conventions. Although our country does not have a clear principle of presumption of innocence in legislation, it has been fully demonstrated in academic theory, and there have been many achievements in the legal field regarding the presumption of innocence. In terms of legislative norms, Article 2 of China's Criminal Procedure Law stipulates that "no one shall be determined guilty without trial by a people's court", reflecting the spirit of presumption of innocence. At the level of judicial practice, China also attaches great importance to the specific application of this principle in practical operations, but what is unsatisfactory is that some cases do not implement the principle of presumption of innocence. The principle of presumption of innocence as the foundation of procedural legitimacy constitutes the concept, and the core issue to be solved is how the accused should be treated before being found guilty in a trial, protecting the "should be" rights of the accused, and making the rights stipulated by law "real". In the Anglo American legal system, the principle of presumption of innocence specifically refers to a rule of evidence used to allocate the burden of proof, that is, the fact that the defendant is guilty needs to be proven by the prosecution, while the fact that the defendant is innocent does not need to be proven. As long as the prosecution has no evidence to prove the defendant's guilt or the evidence to prove the defendant's guilt is insufficient, it should be presumed that the defendant is innocent.Therefore, as an investigation behavior before the prosecution procedure, the presumption of innocence must be implemented as the core concept in criminal investigation activities: it is clear that the accused is an "innocent person" rather than a "criminal" in law. The determination of this subject status requires the investigation agency to respect the basic rights of the accused and cannot assume that the accused is guilty and conduct investigation activities. Guided by the concept of presumption of innocence, private data collection cannot be conducted on a certain type of person or individuals before the investigation is initiated, which is a dual requirement of respecting personal privacy and presumption of innocence. Objectively speaking, the objectivity and reliability of data can become accomplices to the "presumption of guilt", because investigators have subjective value judgments on the facts of the case. When obvious personal judgments affect the reasonable use of big data, the evidence selectively extracted through big data technology will become strong evidence of the presumption of guilt. The goal of utilizing big data in investigative activities is to quickly obtain as many case clues or evidence materials as possible, in order to discover the accused and prove the facts of the case in the fastest and most accurate way. But this kind of big data investigation cannot ignore the procedural value of human rights protection just because there is a shortcut. Only by always adhering to the procedural significance of human rights protection and implementing the principle of presumption of innocence throughout big data investigation, can we better utilize new technologies to achieve the goal of a standardized system for human rights protection in big data investigation.

 

5、 Reconstruction of the "Trinity" Human Rights Protection Norm System

 

The rapid and widespread application of data technology is also constantly impacting our investigative models, concepts, and human rights protection issues. In other words, the technology and concepts of big data investigation are constantly being updated and improved, while the value conflict with human rights is also becoming increasingly prominent. Therefore, the problems brought about by the application of new technologies in big data investigation and analysis urgently need to be solved. How to reconstruct the normative system for human rights protection in big data investigation is particularly important.

 

(1) Defining the relationship between the framework of human rights protection norms and systems

 

The fundamental feature of law is the coercive power of the state, which is a social rule constructed by the state using political power with the aim of maintaining social order and regulating all members of society. So, in the issue of big data investigation, the strategies and policies that the country will adopt depend on whether big data investigation can achieve the legal goals of judicial fairness and justice. The national will formed on this basis is reflected in the bias of the national criminal policy, whether it adopts aggressive or conservative measures. In the process of revising "Criminal Law (IX)", the highest legislative body clearly affirmed the role of criminal law in promoting and guiding social life in the legislative guiding ideology. This also indicates from the legislative level that the purpose and significance of the criminal law system is to control the value trend of the law as a whole, which will directly affect the specific procedural and substantive legal pursuits. Therefore, to reconstruct the normative system for human rights protection in big data investigation, it is necessary to establish a "three in one" system architecture in order to effectively distinguish and decompose the human rights protection at the three levels of purpose, entity, and procedure. Show your words. Firstly, the protection of human rights in the sense of purpose can be regarded as a comprehensive criminal policy, as it has generality and uncertainty, making it not directly applicable as a rule. Otherwise, it is highly likely to lead to the alienation of "legitimate" behavior under the banner of "purpose". This seemingly legitimate behavior, in the context of big data investigation, can easily breed ultra vires behavior, leading to a series of law enforcement behaviors that do not conform to the spirit of legality, such as expanding the scope of information collection. Therefore, the protection of human rights in the sense of purpose can only exist in criminal policies, and specific law enforcement actions should be regulated by the protection of human rights in both substantive and procedural meanings. Secondly, substantive justice originates from the "moral intuition" of human society, which lacks a quantifiable and stable evaluation system due to the shortcomings of human nature. Due to changes in social environment and emotional factors, individual cognitive levels and cultural differences, and human rights protection in the substantive sense, it cannot accurately form stable regulations for big data investigation. Once again, procedural human rights protection clearly distinguishes between the two types of human rights protection mentioned above, as procedural human rights protection possesses scientific nature, professional knowledge background, independent participation, and professional decision-making that the two types of human rights protection do not possess. On the basis of accumulated experience, programs can also break away from the temporary "mass substantive justice", because this justice has the characteristics of the times and changes, so substantive justice is also constantly changing. Only procedural justice can withstand the test of experience and history. Therefore, to reconstruct the "trinity" human rights protection normative system for big data investigation, the logical relationship of its system architecture is: procedural and substantive human rights protection, while maintaining its own independence, efforts are made to improve the legality of human rights protection in terms of purpose. Procedural and substantive human rights protection are mutually constrained, and together, the purpose requirements of the human rights protection system are achieved. In short, the protection of human rights in the sense of purpose makes big data investigation open and political, while the protection of human rights in the sense of entity maintains the most basic fairness and justice in its pursuit, while the protection of human rights in the sense of procedure can maintain the stability and order of big data investigation. As shown in the following figure.

 

(2) Strengthen the dual functional norms to regulate the alienation of human rights protection in terms of purpose and significance

 

The criminal law academic community has long had the theoretical intervention of functionalism, and has conducted beneficial research and exploration on functionalism in criminal law, advocating the purpose theory as the theoretical basis for the construction of the criminal law system. But there are two unavoidable issues when introducing functionalist methodology into the field of criminal investigation: firstly, in the era of big data, how to use technology to improve the efficiency of criminal investigation; The second is how to maximize the protection of human rights while improving efficiency. Data has given modern investigative technology a leap in efficiency and accuracy, but the human rights risks it brings are also increasing day by day. As a broad expression of criminal policy, the protection of human rights in terms of purpose and meaning carries the risk of being driven by efficiency, which can easily lead to arbitrary expansion and gradually erode human independence. With the goal of "protecting the people" as its banner, it always emphasizes the priority of collective interests. Even though it was still considered inclined towards individualism in the 19th century, it unconsciously prepared to limit individual freedom for its welfare. The teleological method is based on the overall evaluation of real cases, emphasizing the common needs of human society, so the space of individual rights is constantly compressed and individual freedom is gradually eroded. Therefore, to reconstruct the "trinity" human rights protection normative system for big data investigation, it is necessary to differentiate the functions of the three types of human rights protection. In short, the purpose, significance, and human rights protection of big data investigation need to be constrained by the dual functional norms of substantive justice and procedural justice human rights protection. The protection of substantive justice and procedural justice is the way and basis for achieving the protection of purposeful human rights. Therefore, from a functionalist perspective, it is necessary to not only play the role of protecting human rights for the purpose of big data investigation, but also overcome the risks brought by protecting human rights for the purpose of big data investigation. Therefore, in order to reconstruct the "trinity" human rights protection normative system for big data investigation, big data investigation must be constrained by the dual level normative inspection and regulation of substantive and procedural human rights protection, in order to achieve the functional value of purposeful human rights protection. In other words, the realization of substantive and procedural human rights protection in big data investigation is also the destination and purpose of purposeful human rights protection.

 

(3) Constructing a normative system for human rights protection based on the four principles

 

Although the reconstruction of the human rights protection system is based on two types of human rights protection: procedural and substantive, as shown above, substantive human rights protection has its inherent flaws, and procedural human rights protection can just fill these loopholes. Therefore, when reconstructing this human rights protection normative system, this article believes that it is necessary to establish a cornerstone and a standard, and on this basis, to reconstruct the "trinity" human rights protection normative system of big data investigation. The cornerstone of this system is the protection of procedural human rights. This article proposes four principles as standards. Reconstruct the "trinity" human rights protection normative system for big data investigation based on standards around the cornerstone. These four principles serve as standards. The exhibition is as follows:

 

Firstly, improve the principle of protecting citizens' rights under the presumption of innocence

This principle includes the presumption of innocence and the protection of civil rights, which belong to two different legal departments, but they interact with each other and together constitute human rights protection standards in the context of big data. The presumption of innocence has always been one of the core principles in the criminal field since modern times, and its existence is a powerful guarantee to limit the infringement of civil rights by public power. In the era of continuous updates in big data technology, public power uses new technologies to cross some power boundaries, which is prohibited by the principle of presumption of innocence. However, due to imperfect legislation, this principle has not been well implemented. Public power agencies utilize the functional significance of criminal policies to implement various investigative measures with a purpose oriented approach. The legality and rationality of these measures are questionable. Under the cover of the purpose significance of criminal policies, society and the public have no way of knowing how much power boundaries public power has broken through. The principle of presumption of innocence should serve as the "reins" that constrain public power, and the correctness of the purpose cannot be the value standard for judging the right or wrong of power behavior. The process of achieving goals cannot be achieved by sacrificing the legitimate rights and interests of other citizens, and there is no difference in value between individual human rights and collective human rights. Therefore, in the implementation of criminal investigation strategies, sacrificing civil rights cannot be used as a means of public power, and principles and bottom lines should be adhered to, seeking reasonable and legitimate methods.

 

When conducting big data investigations, there are violations of citizens' rights beyond one's authority, taking privacy rights as an example. The right to privacy is one of the fundamental rights of citizens. As an objective law, it requires legislative bodies to provide maximum legislative protection for the content of citizens' privacy. In the current information age, citizens' personal privacy is collected by data platforms and other entities, with various explicit or illegal methods, and algorithms are used for infringement. Its objective legal attributes have not played their due role. As a new type of investigative tool, big data has problems such as unclear internal processes, unclear responsible parties, and external supervision that cannot be followed or regulated. So the premise for the use of big data investigation should be the same as the procedures for existing investigation measures in criminal litigation in China, with clear implementation subjects and responsible subjects, and necessary pre investigation procedures set up. Clarify the urgent need for legislation, adhere to data neutrality and technology neutrality, do not preset subjective positions, and collect comprehensive information as much as possible while respecting privacy rights. In terms of content, it is necessary to clearly define the types of personal data collected by investigative agencies on a daily basis. For example, clarifying the types of basic data that can be collected, establishing a permission level system, and establishing different confidentiality mechanisms based on the permission level of the data. The higher the permission level of the data, the more strict the procedures required for use compared to general data, and strict approval procedures are necessary. The sound implementation of this principle undoubtedly lays the foundation for the reconstruction of the human rights protection system for big data investigation, enabling the means of big data investigation to have a clear sense of rules and clear limits of authority. By keeping "power" in a cage, it can be better utilized without being violated by "power".

 

Secondly, establish the principle of judicial review in big data investigation

In the era of big data on the Internet, the likelihood of litigants' rights being violated has become higher. In the process of big data investigation, the investigation authorities have already been in an absolute dominant position of power, and now they are in a dominant position of technological advantage. The disadvantages of the parties involved will be more obvious, and human rights risks will also increase accordingly. This state of power imbalance requires the introduction of a neutral third party to review its legitimacy. Under the judicial reform concept centered on trial in China, the litigation structure is also constantly changing. Suppressing public power and balancing the power allocation of the prosecution and defense have become one of the current trends in reform. Therefore, to reconstruct the human rights protection system for big data investigation, it is necessary to establish a judicial review system. The judicial review system takes "due process" as the logical starting point, emphasizing the rule of procedure and procedural justice. It mainly refers to the legal system in which the state reviews the activities of other state organs exercising state power through judicial organs, corrects illegal behaviors through judicial activities, and provides corresponding remedies for the damage caused to the legitimate rights and interests of citizens, legal persons, and other organizations. Balancing power is the essence of the judicial review system, and its legitimacy and purposiveness make investigative power and judicial power mutually constrained. In legal practice, the judicial review system usually includes three aspects: firstly, judicial pre examination. Before implementing special mandatory investigation measures related to property and personal aspects, the investigation agency must first obtain a judicial certificate issued by the court. The second is procedural judgment, which is a type of post hoc review, the most typical of which is the exclusion of illegal evidence. Some courts declare the investigation measures illegally used by the investigation agency invalid and exclude relevant evidence materials. The third is to accept the appeals and accusations of the parties involved in the litigation, which is an in process review. If the parties believe that certain investigation measures taken by the investigation authority have infringed on their legitimate rights and interests, they can submit their own appeals or accusations to the corresponding judicial authority. In terms of judicial review of big data investigation, firstly, in terms of program operation, judicial review of big data investigation procedures should be conducted, with a focus on the legality of their investigation procedures, and there should be no review of whether the accused person is guilty. Secondly, with the constraint of this principle, it is also necessary to prevent the violation of procedures during the implementation of big data investigations. As an effective means of constraint, a sound judicial review system can externally restrict the exercise of big data investigation rights to ensure that big data investigations operate in legitimate legal procedures and achieve the goal of reconstructing the human rights protection system.

 

Thirdly, adhere to the principle of proportionality

The principle of proportionality is the "essence" of administrative law, as it emphasizes the humility of power and the maximum protection of rights and interests. The principle of proportionality can also be absorbed and utilized by big data investigation in criminal law. The application of big data in investigation has added another source of power to the investigation power, bringing about an imbalance between the prosecution and defense, which is already imbalanced. Therefore, it is extremely important to introduce the principle of proportionality in big data investigation. To sum up, the principle of proportionality means that means and ends are equivalent, and any means beyond the purpose and effect are considered unnecessary. By resorting to any means to achieve the goal, it may infringe upon the legitimate rights of the accused or an extralegal third party. Therefore, investigative agencies should maintain a humble attitude towards their investigative power, while paying attention to the standardization, appropriateness, and rationality of their actions. This principle requires that the damage and losses caused by investigative measures to the target behavior must be less than the value effect that the measure may achieve. Adhere to the principle of proportionality and eliminate the investigative mindset of only solving cases. Big data investigators should adopt the means and methods that have the least impact on civil rights to collect, analyze, and process data, ensuring the legality and authenticity of personal data. Big data investigation implements access control over databases, minimizing the scope of personnel who can directly access sensitive data of citizens. Strict restrictions on the use of sensitive data of citizens, whether legal or not, must be pursued to maximize the effectiveness of human rights protection with minimal harm.

 

Fourthly, the principle of setting data defense rights

Some scholars have proposed that the accused should be granted the "right to data defense". The author believes that the right to data defense includes two meanings. Firstly, the right to know. After conducting data analysis on the accused, they should have the right to know. In the process of criminal investigation, the right of the accused to know refers to the right of the accused to obtain relevant information about the case, to know their own litigation status and rights, and to ensure the realization of these rights by the investigation and prosecution organs representing the country in criminal litigation activities. It is particularly important to establish a disclosure and interpretation procedure here, because the professionalism of technology and the combination of technology and law are difficult for ordinary people to understand. If they cannot clearly understand what they are going to face, it will create a difficult situation for the accused to effectively defend and defend, which is not conducive to the fairness and justice of the law. Secondly, the defendant has the right to raise objections to the obtained data analysis results, that is, they have the right to raise their own objections to the data source, algorithm, whether the results are correct and reasonable, and can also propose analysis results based on other data. Some scholars have proposed the concept of "digital innocence", believing that big data itself can also serve as a basis for proving the legitimacy of party behavior, in order to address issues such as data mining bias and selective neglect of digital evidence. Fully protecting the rights of the accused is one of the core issues to be addressed in reconstructing the human rights protection system for big data investigation, and it is also an inevitable requirement for judicial fairness.

 

In summary, in terms of how to reconstruct the "Trinity" human rights protection normative system for big data investigation, this article believes that it is necessary to first construct this system architecture, then establish a cornerstone and a standard, and reconstruct the "Trinity" human rights protection normative system for big data investigation around the cornerstone with standards. At the same time, the three types of human rights protection should be functionally differentiated, so that the illegality of human rights protection for the purpose and significance of big data investigation is constrained by the dual functional norms of substantive justice and procedural justice human rights protection. The improvement of substantive justice human rights protection and the adherence to procedural justice human rights protection are not only the way and foundation to achieve the purpose and significance of big data investigation human rights protection, but also to maintain the substantive justice of big data investigation The normative nature of procedural legality itself.

 

6、 Conclusion

 

In summary, big data investigation is an inevitable product of the investigation model that conforms to the development of the Internet era and has historical inevitability. The core issue of using big data technology for investigative power is not only to improve criminal efficiency, but also to lead to the alienation of public power, posing a certain threat to civil rights. This requires big data investigation to correctly handle the relationship between the three types of human rights protection and reconstruct the "trinity" human rights protection normative system of big data investigation. How to restructure, big data investigation needs to properly arrange the illegality of human rights protection in the sense of purpose, while also improving substantive human rights protection. On the basis of adhering to procedural human rights protection, it is necessary to clarify the structure of the human rights protection system, establish cornerstone and standards, and strengthen dual functional norms to regulate the alienation of human rights protection in the sense of purpose, in order to reconstruct the "trinity" human rights protection normative system of big data investigation. At the same time, the three types of human rights protection should be functionally differentiated, so that the purpose, significance, and illegality of human rights protection in big data investigation are constrained by the dual functions of substantive justice and procedural justice human rights protection. The improvement of substantive justice human rights protection and the adherence to procedural justice human rights protection are not only the way and foundation to achieve the purpose, significance, and human rights protection of big data investigation, but also to maintain the substantive justice of big data investigation The normative nature of procedural legality itself. Therefore, under the premise of adhering to the "Trinity" human rights protection standard system of big data investigation, big data investigation adheres to the concept of power restraint and runs through the concept of human rights protection system throughout, in order to achieve the effect of both legitimate purpose, substantive justice, and procedural legality. On the path of comprehensive rule of law, whether big data investigation implements the "three in one" human rights protection normative system is the touchstone for testing a rule of law country.