網絡犯罪國際公約中的跨境調取數據條款

The Clause of Cross-Border Data Retrieval in International Conventions on Cybercrime

《打擊為犯罪目的使用信息和通信技術全面國際公約》的案文草案經各方多次磋商之後已經成型，中國關於深化打擊網絡犯罪國際合作的戰略主張正在聯合國層面穩步推進。公約中以“提交令”為表現形式的跨境調取數據條款因涉及各國主權與安全方面的核心利益，屬於各方關注的重要問題。從《布達佩斯公約》《布達佩斯公約第二附加議定書》以及聯合國層面全新公約的案文設計來看，儘管網絡犯罪國際公約中的跨境調取數據條款經歷了一定程度的發展演變，但是都反映出網絡犯罪治理的公私合作模式、基於主權與安全因素的數據分類分級保護得到了重視，締約國在強制適用條款基礎上的自主選擇權也需要得到尊重。我國締結聯合國層面的全新公約並接受跨境調取數據條款，需要做好數據主權與安全方面的精細制度設計，並且在數據分類分級保護、數據出境安全審查、境外數據的跨境調取方面做好國內法的對接。

The Comprehensive International Convention on Countering the Use of Information and Communications Technologies for Criminal Purposes has completed its several rounds of consultations by the Special Intergovernmental Expert Committee. The draft text of the convention, after being reviewed and shaped by the Special Committee, is proposed to be submitted for a vote at the following session of the United Nations General Assembly. Guided by the idea of the Community of Human Desting in Cyberspace, China's strategic proposal for deepening international cooperation in combating cybercrime is steadily progressing at the UN level. The provision in the convention on cross-border data retrieval, which takes the form of a 'production order' and which has fundamentally altered the traditional bilateral or multilateral criminal judicial assistance structure, is a significant issue of concern for all parties involved, as it pertains to the core interests of national sovereignty and security. Judging from the Budapest Convention, the Second Additional Protocol to the Budapest Convention and the text design of a new convention at the United Nations level, the institutional arrangement for cross-border data retrieval has already reached a consensus in the international community. The inclusion of corresponding provisions in the formal text of the convention has become a highly probable occurrence. Judging from the design of specific system, even though the provisions on cross-border data retrieval in international conventions on cybercrime have undergone some development and evolution, three aspects of design elements have been reflected. Firstly, the public-private cooperation model of cybercrime governance has been emphasized. This actually aligns with the global professional consensus on combating and preventing cybercrime and is in tune with the trends of the times. Secondly, the classified and hierarchical protection of data basing on factors of sovereignty and security has also been given significant attention. To gain the maximum consensus among the contracting states of the international convention on cybercrime, it is crucial to consider a detailed system design in data sovereignty and security to respond the needs of various countries regarding sovereignty and security. Thirdly, the self-directed choice of parties to the convention on the basis of the mandatory application of the article also needs to be respected. Due to the significant differences in domestic laws among countries regarding the control of data exiting their borders, the provisions for cross-border data retrieval should not only have universal applicability, but also respect the individualized needs of the contracting states as much as possible. As China signs a new convention at the United Nations level and accepts the provisions on cross-border data retrieval, although it needs to assert the maintenance of national sovereignty, it's not appropriate to assert strong national sovereignty claims over all types of data held by network service providers. Specifically, China needs to integrate the revisions of laws such as the Criminal Procedure Law and the Data Security Law to intricately design systems for data sovereignty and security. This effort includes classified and hierarchical protection of 'user data', 'traffic data' and ' content data', conducting security reviews for data that may impact national security, and utilizing network service providers to directly retrieve data stored overseas, thus effectively bridging domestic laws with international conventions, and strategically advancing both domestic legal governance and foreign-related legal governance.