【摘要】 确定网络爬虫的刑事责任边界，核心问题在于对数据获取行为是否取得授权的判断。关于数据犯罪中的“未经授权”或“超越授权”,美国判例先后存在代理范式、合同范式、撤销范式、代码范式等不同认定路径。上述范式背后所代表的合约权利标准和技术障碍标准各有利弊，二者并非互斥择一，而应是递进互补的关系。网络爬虫刑事责任的认定，应当首先通过场景式、类型化的思路进行数据确权分析。在此前提下，合约权利的违反奠定了数据爬取行为的基础不法。对合约的形式应当进行限定，其中爬虫协议发挥着举足轻重的作用。在此基础上，技术障碍的突破进一步提升和确证了刑事不法，由此可以限制处罚范围的过度扩张。技术障碍的认定不宜过度严苛，典型的反爬措施可以归入此类，对此应当妥善考虑企业数据权利、平台运营模式等多重利益的平衡。更多还原

【Abstract】 Web crawlers are more and more commonly used in many fields of production and life, but the criminal legal risks of data crimes also come with them. The core issue in the determination of the boundary of criminal liability of web crawlers is the authorization for obtaining data. Different regulatory structures of data crimes not only directly affect the boundaries of criminal liability for data crawling, but also limit the path to the determination of the authorization issue. The data crime provisions in the criminal laws of China and the United States have both adopted a relatively broad expression, so it is of great value to analyze the paradigms for determining the authorization issue in the United States. Regarding the determination of “no authorization” or “exceeding authorization” in data crimes, there exist different paradigms in American jurisprudence, such as the agency paradigm, the contract paradigm, the revocation paradigm and the code paradigm. The criteria of contractual rights and those of technical barriers represented by the above paradigms have their own advantages and disadvantages. The two sets of criteria are not mutually exclusive but should be in a complementary relationship with each other. To determine the criminal liability of web crawlers, we should first analyze the data ownership with scenario-based and typological thinking. However, the ownership of data rights in network platforms is highly controversial and discussion about this crucial issue is lacking in the current analysis of the criminal liability of web crawlers. Specifically, personal data should be distinguished from platform control data, and the data rights of individuals, platforms, and the public should be ascertained in light of different situations. On this basis, the violation of contractual rights lays the foundation for the illegality of data crawling. The form of the contract should be limited and the Robots Exclusion Protocol plays an important role in this respect. The breakthrough of technical barriers further enhances and confirms criminal illegality, thereby limiting the excessive expansion of punishment. The identification of technical barriers should not be too strict. Anti-crawler measures can be classified into this category and the balance between multiple interests such as enterprise data rights and platform operation mode should be taken into proper consideration. Through the combined criteria of contractual rights and technical barriers, data crawling behaviors that seriously violate data rights can be distinguished from daily misbehavior and minor infringements. In this way, data rights are fully protected and the last-resort nature of criminal law is maintained. The determination of the criminal liability of web crawlers requires us not only to carry out comparative research by taking relevant paradigms of data authorization as reference but also to carefully observe the reality of the Internet economy and the internal logic of the platform business model in the context of localization. Only in this way can we propose theoretical solutions to the problems relating to controversial data processing behaviors that truly suit China’s national conditions.更多还原