Authored by Yiyang Cao*
Abstract
Electronic evidence is a new type of evidence emerged in this information society, which challenges modern evidence collecting and preserving. There are two main disputes in Qvod Player Case, one is extraction of electronic evidence, the other is the identification process of collecting electronic evidence. Qvod is a peer-to-peer video-streaming platform, which provided a way for users to watch mostly pirated video and pornography online. In the Qvod Player case, the dispute between the prosecution and the defense mainly focused on the relevance, authenticity, and legitimacy of electronic evidence collected from four servers and obscenity videos. The debate on extraction of electronic evidence focuses on the legitimacy of third-party assistance, the timeliness and the integrity of electronic evidence extraction. The identification problems of electronic evidence are as follows: the qualification of the examiner and the procedure of the identification. This essay will try to analyze the pros and cons of Qvod Player case and explore the ways to promote the ways of collecting and preserving procedures of electronic evidence, which makes the evidence more convincing.
Keywords: Electronic evidence; Qvod player case; Forensic science; Evidence Collection
Introduction
Recently, in the big data era, with the widespread usage of the internet, various new types of criminal activities are emerging. The proliferation of the internet brings out new challenges and opportunities in forensic science theoretically and practically. Due to the complicated characteristic of the internet world and lack of relevant laws and regulations, collecting and preserving electronic evidence has become a hotly debated topic after the case of Qvod Player. On January 7, 2016, the Beijing Haidian District Court heard the case of Shenzhen Qvod Player (Kuaibo) Technology Co., Ltd (hereinafter referred to as Qvod Player Company). Qvod Player Company was suspected of making, copying, publishing, selling, and distributing obscene videos to obtain profit. In the course of the trial, there was a big dispute centering on the authenticity and legitimacy of electronic evidence. The defendant and the prosecution had a fierce cross-examination due to the extraction of electronic evidence. The debate centers on the following aspects:
1. The originality and integrity of evidence collected from the four servers has been influenced.
2. The seizure and search procedure of the four servers does not match legal provisions.
3. There is a high possibility that the evidence may be contaminated in the transfer of evidence and should be ruled out.
4. The evidence procedure of collecting, opening, and identifying electronic evidence is illegal. This paper aims at exploring some ways to promote the development of electronic evidence collection in China.
Case Report
The defendant Wang Xin is the legal representative and CEO of Qvod Player Company. The Co-defendant Wu Ming is the manager, Zhang Kedong is the deputy general manager and technology platform of Qvod Player Company. In December 2007, since the establishment of the Qvod Player Company, this company has provided a network for users by releasing free QVOD Media Server Installer (hereinafter referred to as QSI) and player software to the Internet. During the period, the supervisors of Qvod Player company, Wang Xin, Wu Ming, Zhang Kedong, who knew their QSI and player software were used for broadcasting, searching, and downloading obscene videos for profit, they still turned a blind eye to these behaviors, resulting in a large number of obscene videos spread on the Internet.
On November 18, 2013, Beijing Haidian District Cultural Committee seized 4 servers hosted by Qvod Player company from Beijing Netlink Guangtong Technology Co., Ltd. (hereinafter referred to as Guangtong Company) located in Haidian District. Having extracted 29, 841 video files from the above three servers for identification by the Beijing Municipal Public Security Bureau, 21,251 of which were confirmed to be obscene videos. According to the provisions of Article 365, Article 366, Article 30 and Article 31 of the Criminal Law of the People’s Republic of China, Wang Xin, Wu Ming, and Zhang Kedong should be convicted and sentenced respectively [1]. In the first instance of this case, due to the live broadcast of the court, the arguments and evidence of this case aroused the attention of the public.
The judgment of this case has won praises from all walks of life. However, this case also illustrates that some difficulties in collecting and preserving electronic evidence in China. There are three aspects of problems in this case in judicial practice: the extraction of electronic evidence, the identification of electronic evidence and the authenticity of electronic evidence. In this case, the disputes on extraction of electronic evidence mainly centers on the legitimacy of third-party assistance, timeliness, and integrity of electronic evidence extraction. Firstly, the legitimacy of third-party assistance is not guaranteed. The extraction of electronic evidence cannot be verified, which directly determines whether the data collected from the four servers can be used as electronic evidence.
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