Chinese police get more powers on collecting electronic data as evidence

China has issued new guidelines enabling frontline police to collect and authenticate electronic data in any form admissible as court evidence, a move that will allow police to freeze personal cyber accounts for up to six months or longer.

The guidelines – which take effect February 1 – come two years after the country’s supreme court, top procuratorate and public security ministry officially began accepting electronic data as evidence in October 2016.

The Ministry of Public Security issued the guidelines on Wednesday, at a time when the government has further expanded police powers and control. Last week, the ministry announced a new regulation that exempts police officers from prosecution if private property is damaged while they are performing their duties.

And this month, the Cyberspace Administration, China’s special cybersecurity police, began a new crackdown on websites and web applications that spread what they call “negative information” on the internet.

China has more than 750 million internet users and has been grappling with an increase in cybercrime, including in the areas of online gambling, fraud, the illegal sale of personal information and organised terrorism activities. Police officers are facing a rising challenge of trying to produce solid electronic evidence that can be authenticated in court as internet technologies such as cloud computing continue to advance.

According to the ministry, the new guidelines would improve the quality and comprehension of evidence retrieved by providing technical standards to follow.

They also allow remote and online retrieval of electronic data. But the entire data collection process must be documented on video for major cases, those involving the allegation of endangering national or public security, if the data is key evidence in the case or if the case could result in a life sentence or death penalty.

Police will also be allowed to freeze electronic data with approval from the public security department, including for personal accounts, for up to six months or longer in special cases.

Electronic data collected by other government departments to enforce administrative regulations can also be used as evidence in a criminal case by police.

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Criminal lawyer Xie Yangyi said he was concerned about the legality of the new guidelines.

“The evidence collection system is a very important part of criminal litigation that requires solid backing from the legislation,” Xie said.

“It is a dangerous move for the Ministry of Public Security to self-authorise power in a regulation that upsets the balance of investigation, prosecution, trial and defence in criminal litigation and violates personal rights in privacy, free speech and information.”

He added that allowing administrative evidence in criminal cases would create major judicial risks and said that the guidelines in general lacked countermeasures to check and limit police power to prevent abuse.

Since November, police have been allowed to enter the premises of businesses and other entities that provide internet services and search for and copy information that is considered relevant to cybersecurity.