Build the last line of defense for personal information protection

2023-01-11

Recently, the Supreme People's Court issued the 35th batch of four criminal guidance cases to protect citizens' personal information according to law, clarifying the criminal protection of citizens' personal information such as face recognition information, resident ID card information, social media accounts, mobile phone verification code, effectively responding to public concerns and resolving some difficult problems in the protection of personal information in criminal justice. The provisions of China's criminal law on the protection of personal information were born in the pre-digital economy era. It was the "first legislation" before the birth of the special legislation, namely the personal information protection law. It took the lead in cracking down on serious violations of the rights and interests of personal information through criminal sanctions, while the corresponding civil and administrative legislation has been absent for a long time. With the advent of the digital economy era and the promulgation and implementation of the Personal Information Protection Law, the normative reality of the coexistence of the "two eras" legislation and the increasing judicial demands for personal information protection in practice have posed multiple challenges to the criminal protection of citizens' personal information, which are reflected in three aspects: first, the scope of personal information protection has changed with the development of the times. The continuous progress of technology and the rapid development of society have reshaped the scope of protection of personal information. Some information has not been recognized as personal information in the past, but now is considered to have the property of personal information, and should be protected by criminal law according to law. Taking telephone numbers as an example, in the past, judicial authorities tended to think that telephone numbers were not able to identify specific natural persons individually or in combination with other information, and were not "personal information of citizens" protected by criminal law. At present, the implementation of real-name registration system has greatly improved the identifiability of telephone numbers. In addition, the leakage of telephone numbers is often the source of illegal crimes such as telecommunications fraud. Therefore, it is necessary to strengthen the protection of telephone numbers and their derivative information. The guiding case "Luo Wenjun and Qu Xiaozhen's Criminal Incidental Civil Public Interest Litigation Case for Infringement of Citizens' Personal Information" released this time clearly states that the telephone number is able to identify the status of natural persons in combination with other information, and the mobile phone verification code has the communication content to identify and verify personal identity, both of which belong to the category of personal information protected by criminal law. The second is how to protect new personal information through criminal law. According to the relevant provisions of the Personal Information Protection Law, face (biometric) identification information is sensitive personal information and needs special protection. In today's era, due to the accessibility of face information and the universality of such acts as senseless capture, if the criminal law identifies all face information as personal information without discrimination, any act such as publishing photos and short videos containing other people's face information without the consent of the information subject may be suspected of violating the personal information of citizens, which is bound to create a large-scale criminalization, I'm afraid this is contrary to the reality of social life and the concept of modesty in criminal law. Based on this, the guiding case "Li Kaixiang's Criminal Incidental Civil Public Interest Litigation Case for Infringement of Personal Information of Citizens" focuses on prohibiting the processing of face information by illegal technical means. It is clear that the face information processed by face recognition technology and the face information generated based on face recognition technology are highly identifiable and belong to the personal information of citizens specified in the criminal law, which appropriately limits the scope of the establishment of the crime of infringement of face information, This effectively protects face information,

Edit:wangwenting    Responsible editor:xiaomai

Source:china.cn

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