Xinhua News Agency, Beijing, May 9th: How to convict and sentence the crime of infringing citizens’ personal information? — Focus on five points of judicial interpretation of “two high” to crack down on crimes of personal information infringement
Xinhua News Agency “Xinhua viewpoint” reporter Luo Sha, Chen Fei, Bai Yang
How to protect citizens’ personal information in the Network Era is increasingly concerned by the society. On the 9th, the Supreme People’s Court and the Supreme People’s Procuratorate issued a judicial interpretation for the first time on cracking down on crimes involving personal information infringement, the conviction and sentencing standards for crimes involving infringement of citizens’ personal information, there are clear provisions on the five major social focuses such as cracking down on the disclosure of personal information “insiders.
Focus 1: How to define the scope of “personal information of citizens? Including full information such as name, ID number, and trace
Among the typical cases of crimes against citizens’ personal information published by the supreme law, a group of five people released personal household registration, vehicle files, mobile phone positioning, personal credit investigation, advertisements of various citizens’ personal information such as hotel accommodation, looking for customers and making profits, were finally sentenced.
In practice, the scope of “citizen personal information” is still controversial. The judicial interpretation released this time clearly stipulates that “citizen personal information” in the relevant provisions of criminal law “, it 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.
Yan Maokun, director of the Research Office of the Supreme People’s Court, said that such regulations are based on the practical needs of comprehensively protecting citizens’ personal information. “Of course, there are many personal information other than examples. In judicial practice, we should grasp the essential characteristics of” citizens’ personal information “and make accurate judgments according to judicial interpretation regulations.” He said.
The Criminal Law stipulates that, in violation of the relevant provisions of the state, selling or providing personal information of citizens to others, if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined or only; If the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall be fined.
In this regard, the judicial interpretation further clearly stipulates that providing personal information of citizens to specific persons and publishing personal information of citizens through information networks or other channels, it should be identified as “providing personal information of citizens” stipulated in the criminal law “. Without the consent of the collector, providing legally collected personal information of citizens to others also belongs to “providing personal information of citizens”, except that specific individuals cannot be identified and cannot be recovered after processing.
Focus 2: how to sentence “sensitive information” such as providing and obtaining whereabouts? 50 pieces can be criminalized
Less than 2,000 yuan to buy call records, less than 1,000 yuan to understand the track of whereabouts…… Not long ago, media exposure, on the Internet, only provide a mobile phone number, you can buy a person’s identity information, call records, location information and other key information.
According to the provisions of the criminal law, the elements of the crime of infringing citizens’ personal information are “serious circumstances”. As for the “serious circumstances” here, the judicial interpretation issued this time clarified ten identification standards such as illegal income of more than 5,000 yuan.
It is worth noting that according to the importance of personal information of different types of citizens, judicial interpretation sets different quantitative standards. For trace information, communication content, credit information and property information, illegal acquisition, sale or provision of more than 50 pieces is considered as “serious circumstances”; For accommodation information, communication records, health physiological information, transaction information and other personal information of citizens that may affect personal and property safety shall be more than 500 articles; For other citizens’ personal information, the standard shall be more than 5,000 articles.
“The establishment of conviction and sentencing standards is conducive to the unified and accurate implementation of the law, and provides a powerful legal weapon for severely cracking down on crimes that infringe on citizens’ personal information.” Qu Jie, deputy director of the Supreme People’s Procuratorate Law and Policy Research Office, said that the case handling department should first classify and analyze the personal information of the citizens involved. If each type of personal information of the citizens does not reach 50, if there are 500 or 5000 articles, the judicial interpretation stipulates that they should be aggregated according to the corresponding proportion.
For example, Yan Jie said that a case involving 20 sensitive information such as citizen trajectory information and 350 important information such as accommodation information should be converted according to the ratio of 1 to 10 times. 350 pieces of important information are converted into 35 pieces of sensitive information, and 55 pieces of two pieces are in total. Criminal responsibility shall be investigated.
Focus 3: How to crack down on “internal ghosts”? Lower the threshold for internal personnel to commit crimes
“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.
How to crack down on “insiders” who infringe on citizens’ personal information “? According to the judicial interpretation regulations issued this time, if the personal information obtained in the process of performing duties or providing services is sold or provided to others, the quantity or amount reaches more than half of the relevant standards stipulated in the judicial interpretation, it can be identified as the “serious circumstances” stipulated in the criminal law, which constitutes a crime.
“Judicial interpretation lowers the threshold of incrimination for industry insiders to disclose information and provides a legal basis for us to better crack down on such crimes. For any case of infringement of citizens’ personal information, we must trace the source and dig deep into the insiders in the industry.” Xu Jianzhuo said.
At the same time of cracking down on “insiders”, the judicial interpretation further clarified the obligations of network service providers. It is stipulated that network service providers refuse to fulfill the information network security management obligations stipulated by laws and administrative regulations, and refuse to correct them after being ordered by regulatory authorities to take corrective measures, resulting in the disclosure of users’ personal information of citizens, those who cause serious consequences shall be convicted and punished in accordance with the relevant provisions of the criminal law for refusing to fulfill the obligation of information network security management.
Focus 4: how to punish personal information for product promotion? 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…… All kinds of strange things are doubtful: in order to promote products, these merchants can openly obtain personal information and use it?
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.
Focus 5: How to plus-sized punishment for crimes that violate citizens’ personal information? The fine can reach up to 5 times the illegal income.
Yan Maokun said that another highlight of the judicial interpretation introduced this time was to clarify the applicable rules of fine penalty for crimes against citizens’ personal information.
The judicial explanation is clear. For the crime of infringing citizens’ personal information, the harm degree of the crime, the amount of illegal income of the crime, the defendant’s previous record, guilty confession and repentance should be considered comprehensively, and a fine should be imposed according to law. The amount of fine is generally more than 1 times and less than 5 times of illegal income.
Yan Maokun said that the crime of infringing citizens’ personal information has obvious profit-making nature, and the perpetrator committed this kind of crime mainly to seek illegal benefits. Therefore, it is necessary to plus-sized the application of property punishment, so that the actor does not pay more for the economic gains and losses, and then deprive him of the economic ability to commit such crimes again. (Source: Xinhua News Agency)
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Xinhua News Agency, Beijing, May 9th question: How to convict and sentence the crime of infringing citizens’ personal information? — Focus on five points of judicial interpretation of “two Heights” to combat crimes of personal information infringement Xinhua News Agency “Xinhua viewpoint” reporter Luo Sha, Chen Fei, Baiyang network