The Internet has brought the human society into a totally new era, and how to build up the network governance system and governance rules adaptive to the new background of the society is a subject of the era with joint concern of the international society. At the opening ceremony of the Second World Internet Conference held on December 16, 2015, General Secretary Xi Jinping put forth the four principles on promoting the transformation of global Internet governance system and the five proposals on building a community of common future in cyberspace. For the governance of cyber space, he clearly set out the proposition of “building up the Internet governance system and promoting fairness and justice”. At the recently concluded Third Internet Conference, General Secretary Xi Jinping pointed out in his video speech that, we should push forward the Internet governance towards a more impartial and rational orientation. Building up a complete law and rule system for cyber space as soon as possible as a pursuit for fairness and justice in a society of rule of law, should become the mission of the era jointly shouldered by the legislators and theory researchers.
The cyber society has brought about all-round challenges to the traditional legal rules and jurisprudence research, with many legally “fuzzy areas” and even “blank areas” appearing in the cyber space
Network has brought us not only the legally increasing interests, but also the illegal and disordered distribution of interests. With the continual advance of networked human society, unlawful acts and crimes in cyber space have also kept on increasing, evolving and varying, resulting in all-round impact on traditional legal systems and rules, and seriously hindering the realization of fairness and justice in the cyber space and the whole society. The embarrassing objective facts are: on the one hand, the updating of cyber technologies is accompanied with the rapid growth and continual variation of unlawful acts and crimes in the cyber space, and the growth rate of cyber crimes seemed to better reflect the “Moore law” in the development of computer technology, i.e. the law of doubling every two years; on the other hand, relevant legal rules could be issued only after a long time of deliberations. In other words, legislators and theory researchers finally grasped the characteristics of cyber unlawful acts and crimes of a certain type and put forth a corresponding solution, only to find that it had already been replaced by new forms of crimes. This has resulted in the embarrassment that a new law and rule is actually invalid right after it is validated, and new results of theoretical research are out of date just as they are born.
Cyber crimes emerge endlessly, therefore, many legally “fuzzy areas” and even “blank areas” have appeared in the cyber space, but the response from the legislation and criminal law theory was weak. Theoretical researchers should be alerted to this fact. In fact, this phenomenon exists in almost all jurisprudent disciplines. In recent years, researches on cyber law have followed up quickly, and the number of research personnel has increased rapidly, especially, many young people have joined in it, with the research results growing explosively. However, the changes of social form with the intervention of information and cyber technologies have brought forth all-round challenges to the law, and at present, research on legal rules and theories is still relatively lagging behind, the “generation gap” related problems such as the age structure of legislation workers and theoretical research personnel groups, their knowledge background structure and the combination with network have caused gradual separation of the whole laws and jurisprudence of China from the reality, instead of rapid follow-up, due to ignoring the cyber space.
More than 10 years ago, when the computer virus and hackers became first known to the public, there was a little hot surge in the research of the rule system against cyber crimes. When the first hot surge of researching cyber crimes receded, people suddenly found that not much was left on the beach. I still remember that in a thesis defense for criminal law degree in 2009, a known scholar even pointed out on the spot: “if there was something new in the research of cyber crime more than 10 years ago, is there any practical significance to study this question now?” Today, the number of scholars with this view may have reduced, however, the phenomenon that theoretical research is too high to touch still exists, and similar views still have extensive “market” in the theoretical field, for example, they simply determine the network as a pure tool of unlawful acts and crime, while ignoring the profound change produced by the network to the social structure and behavior pattern. The primary cause leading to this wrong cognition may possibly be technical barriers. Inherent technical factors in cyber space and cyber criminal acts are the biggest barriers in the research of criminal law science. At present, most researches on cyber unlawful acts and crimes are only limited to the description of phenomena, and have never touched, probed into and known the essential things hidden behind the criminal phenomena on surface. The most vital point resulted from technical barriers is that, many jurisprudent scholars have not recognized the overwhelming influence of the inter-generation changes of the Internet on the whole jurisprudence.
Face squarely the inter-generation evolution of the cyber society, and realize the transition of the times for the research of legal rules and jurisprudence concerning networks
In the past nearly two decades, the Internet has completed a profound inter-generation transition. In physical framework, networks have quickly come to the phase of mobile Internet and three networks merging: from the coexistence of TV network, computer Internet and mobile Internet to the “merging of three networks”, and from the three screens of TV, computer and mobile phone to the combination of three screens, realizing the cross-network development and sharing of screens at the physical device level of the Internet, and the rapid development of IOT devices and wearing devices has further pushed the physical structure of networks to embed into all areas of work and life of people. In terms of the operation mechanism, in the early period, Internet mainly made “connections”, with its space operation mechanism as connecting the big data centers of the commercial institutions, governmental departments, scientific research institutions and portal websites, ordinary network users made access to, inquired and received information from these big data centers via the Internet in a single-direction, and this type of data centers became the centralized representatives of the interests of cyber space. The Internet today mainly operates in a “mutual” manner, as every player in the cyber space is both the information producer and the receiver. The interaction between ordinary cyber users has become the dominating operation mechanism of the current Internet space, and big data centers have in turn started to collect and analyze data of ordinary users in large scale; in terms of social attribute, the simple information media of early Internet quickly realized the digital virtualization of the real space, thereby causing the mapping of traditional real rights such as digital copyright and virtual property right in the cyber space, while the current networks have started transition from “virtuality” to “reality”, the rights and interests in cyber space are no longer the “shadows” of rights and interests in real space, instead, cyber space has become the inevitable existing area for various rights and interests of human society. On the one hand, almost all traditional real rights, from individual interests to public interests and even national interests, are substantially embodied in the cyber space, and on the other hand, as catalyzed by the cloud technology and big data technology, digitalization has started for behaviors of individuals, the natural identity and digital identity of people are highly superposed, and a series of totally new rights and interests with information and data right as the core have derived from the cyber space, becoming the development orientation of the latest rights and interests of human society.
In the macroscopic background of inter-generation transition of the Internet, the loss of order and unlawful acts and crimes in the cyber space have kept on refreshing, from the early “computer unlawful acts and crime” to “cyber unlawful acts and crime”, embodying the negation of the concept of network as pure tools, then, the cyber unlawful acts and crime has experienced three basic types: the unlawful acts and crime with network as the “object”, that with network as “tool” and that with network as “space”, and in the present stage, the three are in a co-existing state. With this as the background, the legislation thinking and theoretical research should also rise from the local and static thinking of protecting the traditional physical space as the visually sensed “software, data and systems” to the overall and dynamic thinking of protecting the organic composition of the new type social structure of “cyber behavior, cyber order and cyber security”. Therefore, neither the early simple and limited cognition of taking cyber behavior as that with network as the tool, nor the current error area that the legislation organs and theoretical field try hard to look for characteristics of cyber behavior while cutting off its link with the realistic behavior, can accurately reflect the reality of the current society, and the transition of legislation thinking and research concept is imperative.
Make clear the core view angle of cyber legislation in the future, and build up the rule system for fair and impartial cyber space governance
There is a prerequisite to realize and safeguard the fairness and justice in Internet space, i.e. the question of laws to be observed in cyber space must be solved first. In recent years, legislation in the Internet area has come to the fast lane, however, the realization of fairness and justice and rule of law cannot be merely reflected by the quantity and speed of legislation, more importantly, it should be embodied in the scientific legislation.
Therefore, we must strengthen the top level design for legislation in the Internet field, set forth overall legislation strategy, and grasp the following core aspects, to realize systematic construction of Internet legislation system:
(1) Safeguard the cyber sovereignty in the cyber space governance rules. Network sovereignty is the natural extension of state sovereignty in the cyber space along with the development of the cyber era, and is the foundation for national development and safeguarding of interests in the cyber society. In the future construction of cyber governance rules, cyber sovereignty must be adhered to at all times: on the one hand, legislation must be made to ensure the independent administration power of China, to prevent being controlled by others at the cyber space administration level; on the other hand, we should ensure the steady order and healthy development of cyber space in the scope of administration by China, and that the overall operation order of networks complies with the general interests and dominating value of China; at the same time, we should strengthen the safeguarding of cyber data sovereignty. Legislation should be made to administer the data produced, circulated and stored in China, to prevent and control data related risks.
(2) Embody the “no boundary” feature in the cyber space governance rules. Compared with real space, there is no time and space limit for the cyber space, and it features “no boundary”. This is a feature we must deal with seriously in building up the cyber space rule system. Specifically: on the one hand, the scope of application of laws has no boundary. In the future legislation, we must review again the scope of application of laws, for example, rules to determine jurisdiction and cross-border behaviors must be updated by legislation; on the other hand, there is no boundary for the scope of behavior access. In the cyber society, all social individuals are closely tied together, and many phenomena in the cyber space are actually caused by the “magnetic effect” of the networks, such as the “omnimedia”, “big data concentration”, and “one to more in the cyber crime aid behavior”, therefore in the corresponding Internet legislation, the “no boundary feature” of the scope of cyber space behavior access must be correctly cognized.
(3) Make clear the core position of data in the cyber space governance rules. Network data are the most important carrier of social information today, and the Internet is in essence a set of massive information and data, so any cyber behavior can be regarded as a change of cyber data. The traditional legal practice only studies the cyber data of specific properties, such as smart property data, national confidential data and individual identity information data, however, in the big data era, all data are closely related, showing the value as a whole, therefore, the future cyber space governance rule must take all cyber information data as the core of attention in legislation.
Facing the inter-generation difference of the Internet, we must recognize that, network is no longer a pure and virtual space not related to reality, the reality and network are not only parallel, but also mutually depend and mutually crisscross, and in the cyber space, complete legal rules are required to realize fairness and justice. Therefore, how the current legal system, produced in the agricultural society and becoming mature and complete in the industrial society, promptly copes with the transition of times and realizes self-readjustment to solve new problems in the information society and cyber space, will surely be a major subject demanding the long-term and joint efforts of the whole society to solve it.
(The Author is from China University of Political Science and Law)