How to define the scope of “citizen’s personal information” by Nandu news reporter Cheng Xiaowen intern Liu Wei? How to determine the criteria for committing crimes against citizens’ personal information? Yesterday, the “two high schools” released the judicial interpretation of criminal cases of infringement of personal information (hereinafter referred to as “interpretation”), clarifying that “property status”, “track of whereabouts” and other personal information belong to citizens, it is stipulated that the crime standard for internal personnel to disclose personal information is reduced by half. In addition, the failure of network service providers to fulfill the obligation of information security protection leads to serious consequences of citizens’ information leakage, which stipulates that they can be convicted and punished according to the crime of not fulfilling the obligation of information network security management.
Focus
A
How to define “personal information of citizens”?
Including comprehensive information such as name, ID number, property status, and whereabouts
Previously, there were a lot of disputes about the connotation of “personal information” because the legislation was not clear. Nandu reporter learned from the press conference that the judicial interpretation released this time clearly defined the scope of “citizen personal information”, and stipulated that “citizen personal information” includes identity identification information and activity information.
Yan Maokun, director of the Research Office of the Supreme Court, introduced, “Citizen personal information” refers to all kinds of information recorded by electronic or other means that can identify the identity of a specific natural person alone or in combination with other information or reflect the activities of a specific natural person, including name, ID number, communication contact information, address, account password, property status, whereabouts, etc.
“In practice, although a lot of information is not necessarily information that identifies individuals, it will also cause damage to citizens’ personal and property.” Zhou Hanhua, a researcher at the Institute of Law of the Chinese Academy of Social Sciences, said, for example, if someone uses the track information they have mastered to conduct data mining on other people’s activity information, it can also cause great damage to personal and property safety.
There is a dispute over the scope definition of “personal information of citizens”. Zhou Hanhua believes that the “network security law” previously formulated defines the personal information of citizens as “information that can identify specific personal identities”, the range is relatively narrow.
Zhou Hanhua pointed out that judicial interpretation in addition to identity information, the activity information is also included in the scope of personal information, which is more conducive to protecting personal and property safety, thus cracking down on crimes. The scope of personal information is not limited to identity information, but also reflects international trends.
Zuo Xiaodong, vice president of China Information Security Research Institute, believes that it is an improvement to further clarify the scope of “citizens’ personal information”, for example, to increase the “track of whereabouts”. Objectively, some information may not be able to identify individuals at present, but with the development of technology, it is still possible to identify individuals through these information in the future. Therefore, the specific scope of personal information is related to technological development, and this clear scope is suitable for the current technological development.
B
How to sentence sensitive information?
50 pieces of information such as communication content and track of whereabouts can be criminalized, with a maximum penalty of 3 years.
The Criminal Law Amendment (IX) issued in 2015 will violate the relevant provisions of the state and sell or provide personal information of citizens to others. If the circumstances are serious, it will be used as a condition for committing crimes against personal information of citizens, however, there is no detailed provision for “serious circumstances.
Nandu reporter learned from the press conference that the judicial interpretation released this time aimed at the identification standard of “serious circumstances” in the crime of infringing citizens’ personal information, from the information type and quantity, illegal income amount, the purpose of the information, the identity of the subject, and the previous record are considered to be clear.
Yan Maokun introduced that, based on the importance of personal information of different types of citizens, the interpretation set the standards of incription of “more than 50 articles”, “more than 500 articles” and “more than 5,000 articles” respectively. Among them, more than 50 pieces of illegal acquisition, sale or provision of four types of information, including trace information, communication content, credit information and property information, can be considered as “serious circumstances”.
In addition, Yan Maokun also pointed out that considering that selling or illegally providing personal information of citizens is often for profit, it explains that the regulation of illegal income of more than 5,000 yuan is “serious circumstances”.
According to the relevant provisions of the criminal law, those with “serious circumstances” can be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and they can also be fined or only.
Zhou Hanhua believed that the Criminal Law Amendment (IX) left a discretionary space for the crime of infringing citizens’ personal information. In practice, there has been no applicable standard for “serious circumstances” and “especially serious circumstances, the judicial interpretation of the two high schools clearly defined the standard of incrimination, which was based on the classification of the damage caused by the personal and property security of the information subject, and refined the provisions of Article 253 of the criminal law amendment.
C
How do network operators punish users for information leakage?
If serious consequences are caused, the crime of refusing to fulfill the obligation of information network security management shall be convicted and punished.
“Many network operators hold a large amount of personal information of citizens because of the need to perform their duties or provide services. Once this information is leaked, it will cause bad social impact and serious harmful consequences.” Yan Maokun introduced that the judicial interpretation released this time clarified the consequences of network service operators failing to fulfill their obligations of information security protection.
Yan Maokun introduced that in order to further urge network service providers to earnestly fulfill their personal information security protection obligations, the interpretation stipulates: “Network service providers refuse to perform laws, if the information network security management obligations stipulated by administrative regulations are ordered by the regulatory authorities to take corrective measures and refuse to correct them, resulting in the disclosure of users’ personal information of citizens and causing serious consequences, conviction and punishment for refusing to fulfill the obligation of information network security management.”
In addition, Yan Maokun introduced at the press conference that “human flesh search” should be identified as “illegal provision of personal information. Yan Maokun pointed out that in the case of “human flesh search”, the actor made his identity, photo, name, life details and other personal information public without the consent of the obligee, affecting his normal work, life order, serious harm, should be “illegal provision of personal information” behavior.
Zuo Xiaodong believes that some human flesh search elements are based on personal information that has been disclosed on the Internet, but this is also regarded as “illegal provision”. Because even in this case, the range of information audiences has been changed, and the original purpose of publishing information has also been changed.
D
How to punish intermediary merchants for buying personal information?
Earn 50000 yuan to be guilty
Just after buying the house, the intermediary called to ask whether to rent it; When the child was born, the phone number to promote the baby’s products came to the door and all kinds of strange images were suspicious: in order to promote the products, these merchants, can personal information be obtained and used openly?
Yan Maokun said that from the perspective of practice, it is common to illegally purchase and receive personal information of citizens and engage in advertising and marketing activities. In order to implement the criminal policy of combining punishment with leniency, the judicial interpretation issued this time sets the standard of incrimination for this situation.
According to the provisions of judicial interpretation, if a citizen’s personal information other than sensitive information is illegally purchased or received for legitimate business activities, he or she has the situation of using the citizen’s personal information illegally purchased or received to make a profit of more than 50,000 yuan, etc, it should be identified as “serious circumstances” and constitute a crime.
E
How to crack down on “insiders”?
Lower the threshold of conviction
“At present, the biggest harm to the disclosure of citizens’ personal information is mainly the leakage of data by internal personnel in banking, education, industry and commerce, telecommunications, express delivery, securities, e-commerce and other industries.” Xu Jianzhuo, director of the network technology research and development center of the Ministry of Public Security, said at the press conference.
The reporter from Nandu noticed that the explanation made special provisions on the crime of personal information infringement by internal personnel: in the process of performing duties or providing services, the obtained personal information of citizens is sold or provided to others, if the quantity or amount reaches more than half of the relevant standards stipulated in judicial interpretation, it can be regarded as “serious circumstances” stipulated in criminal law, which constitutes a crime.
Yan Maokun introduced at the press conference that the Criminal Law Amendment (IX) expanded the scope of crimes against personal information, stipulating that any unit or individual can constitute a crime subject, at the same time, the special subject commits this crime as the plot of heavier punishment. This judicial interpretation puts the conviction and sentencing standard of internal personnel lower than that of ordinary people. For example, 50 “sensitive information” provided by general subjects can be criminalized, but if it is medical treatment, finance, staff in telecommunications and other sectors can be criminalized by providing 25 “sensitive information.
Zhou Hanhua told Nandu reporters that a large number of personal information leaks in practice were all done by “insiders. The Criminal Law Amendment (IX) stipulates that the special subject crime that takes advantage of his position shall be given a heavier punishment. The heavier punishment includes both the heavier sentence and the heavier sentencing conditions, the reduction of the penalty condition by half is the emphasis of the penalty condition.
“Many information leaks that have occurred now are leaked by internal personnel, which is an important source of personal information leakage.” Zuo Xiaodong gave an example, for example, when relatives gave birth to children in the hospital, a bunch of phone calls immediately came from those who sold milk powder, sold infant products or took one-month-old photo pictures of children. Zuo Xiaodong believes that this situation is generally personal information leaked by internal personnel. Therefore, this judicial interpretation plus-sized a blow to the disclosure of personal information by internal personnel.
Conviction and sentencing standards for the crime of infringing citizens’ personal information
1. Serious circumstances
● identification criteria:
Including illegally obtaining, selling or providing more than 50 pieces of trace information, communication content, credit information and property information;
Illegally obtaining, selling or providing accommodation information, communication records, health and physiological information, transaction information and other citizens’ personal information that may affect personal and property safety of more than 500 pieces;
Illegally obtaining, selling or providing more than 5,000 personal information of citizens other than the first two provisions;
Illegal income of more than 5,000 yuan, etc.
Illegally obtain, sell or provide trace information, which is used for crime by others; Know or should know that others use the personal information of citizens to commit crimes, sell or provide to them.
Note:
If the personal information of citizens obtained in the process of performing duties or providing services is sold or provided to others, the number and amount standard of “serious circumstances” shall be halved.
For the conviction and sentencing standards for illegally purchasing and receiving citizens’ personal information for legitimate business activities, judicial interpretation stipulates that there are situations such as using illegally purchasing and receiving citizens’ personal information to make profits of more than 50,000 yuan, etc, it should be identified as “serious circumstances”.
● sentencing
He shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be sentenced to a fine or a single fine.
2. The circumstances are particularly serious
● identification standards
Illegally obtaining, selling or providing “more than 500 pieces”, “more than 5,000 pieces” and “more than 50,000 pieces” of personal information of relevant categories of citizens, or illegally obtaining more than 50,000 yuan;
Or in situations such as “causing serious consequences such as death, serious injury, mental disorder or kidnapping of the victim” and “causing significant economic losses or adverse social impacts.
● sentencing
He shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall be fined.
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Nandu news reporter Cheng Xiaowen intern Liu Wei how to define the scope of “personal information of citizens? How to determine the criteria for committing crimes against citizens’ personal information? Yesterday, the “two high schools” released the judicial interpretation of criminal cases of personal information infringement (hereinafter referred to as “interpretation”),