[How is the crime of infringing citizens' personal information determined in practice? 】

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Text | LCC, Source: Case Handler

In 2009 , the crime of infringing on citizens' personal information was added to China's Criminal Law through the Seventh Amendment to the Criminal Law . The revised maximum sentence for this crime has reached 7 years, and the subject of the crime has also been changed to a general subject: that is to say, ordinary people may be suspected of this crime.

Real estate agents who resell customers' personal information, salespeople from various industries who purchase contact information of potential customers from the Internet, even bank staff who have customer property information, and police officers who can inquire about citizens' personal information, etc., may be charged with this crime. the subject of crime.

From the perspective of case handling practice, the number of such cases has shown a rapid upward trend in recent years. Here are a few things to know from case-handling practice:

1. How to identify “citizen personal information” in practice

The definition of citizens' personal information was clarified in the judicial interpretation of Liang Gao in May 2017. Simply put, citizens' personal information is all kinds of information that can be used to identify the identity or activity of a specific natural person. The judicial interpretation lists name, ID number, contact information, address, account password, property status, and whereabouts.

Judging from some typical cases released by the two high schools and cases in practice, the personal information of citizens involved mainly includes: mother and child, personal information of customers in the express delivery industry, order information on the Internet, personal information of citizens on the intranet of public security organs, banks Personal information of customers, accommodation information in the hotel industry.

It should be said that the scope of protection of citizens' personal information is still relatively large, but the two conditions of identifiability and privacy must be met. Identifiability means that the information can be used to identify a specific person. Privacy means that the information is unwilling to be disclosed by the information subject and unwilling to provide it to others.

The legal interest protected by the crime of infringing on citizens' personal information is the freedom and security of citizens' personal information. In case review, in addition to reviewing whether the information meets the characteristics of identification and privacy, it should also be noted that the information subject agrees that the information can be disclosed and the legal regulations can be Public situations should be excluded from crimes.

The common behavior

The behaviors of infringing citizens' personal information in the criminal law include illegal acquisition, sale, and provision in violation of relevant state regulations. The "relevant state regulations" here are clearly limited to national-level regulations such as laws, administrative regulations, and departmental regulations, so local regulations should be excluded.

The Supreme People's Court and the Supreme People's Procuratorate released a total of 13 typical cases in 2017. The behaviors involved mainly include:

1. Selling personal information of citizens to others in the name of " investigation companies " , including personal household registration, vehicle files, mobile phone location, personal credit information, hotel accommodation and other personal information of citizens.

2. Use the authority of bank staff to illegally inquire the personal bank credit information of citizens in the bank's dedicated network for sale.

3. Buy student information for sale

4. Buy and sell a large number of online shopping order information containing citizens' names, delivery addresses, mobile phone numbers, etc.

5. Invade the intranet of the post office through hacking software, and steal the personal information of citizens inside the post office for sale on the intranet of the post office

6. Join a QQ group involving personal information exchange and purchase, obtain a large amount of citizens' personal information through purchase, exchange, etc., and then publish advertisements in the group to attract buyers

7、一家为全国4500多家酒店提供网络服务的公司因系统存在安全漏洞，致使全国高达2000万条宾馆住宿记录泄露。犯罪嫌疑人非法下载上述住宿信息后用于出售。

8、民警利用其在派出所工作的职务之便，使用已调离的前所长的数字证书查询公安系统内公民个人信息用于出售。

三、如何确定信息的条数

17年的司法解释中确定了对于不同的个人信息种类，采用不同的条数限制。其中行踪轨迹信息、通信内容、征信信息、财产信息50条以上构罪，住宿信息、通信记录、健康生理信息、交易信息等可能影响人身财产安全的信息需要500条，其他种类的信息5000条以上。那么实务中一般是如何认定信息的条数的呢？

从实践来看，涉案的公民个人信息一般数量较大，犯罪嫌疑人一般通过电子数据形式打包进行发送，不排除少数情况下存在信息重复，比如针对同一信息对象并存“姓名+住址”“姓名+电话号码”“姓名+身份证号”等数条信息，但要求做到完全去重较为困难。另外，对于信息的真实性也难以一一核实。假如要求公安机关的侦查人员一个个打电话联系权利人核实公民个人信息的做法，明显不合适。基于此，司法解释规定：对批量公民个人信息的条数，根据查获的数量直接认定，但是有证据证明信息不真实或者重复的除外。

In practice, the information and data seized are generally in the form of electronic evidence, and the public security organs will generally hand them over to an appraisal agency for appraisal. However, in the case review, the appraisal process of the appraisal opinion should be strictly reviewed. For example, many appraisal agencies will use keyword search to determine the number of pieces of information, but in fact, depending on the situation of individual cases, the numbers obtained by this method cannot be used as the final number of pieces of information. In particular, case investigators at the stage of review and arrest should conduct a general inventory of the information involved in the case, and confirm that the number of pieces of information is above the filing standard before they are identified.

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