A Review on Legal Status of Stakeholders subject to Search and Seizure upon Electronic Information Stored by Third Party (제3자 보관 전자정보 압수수색에서 피압수자의 법적 지위에 관한 고찰)

Park, Bongkyun (박봉균)

A Review on Legal Status of Stakeholders subject to Search and Seizure upon Electronic Information Stored by Third Party

Legal Theory & Practice Review
Abbr : LTPR
2023, 11(4), pp.645-671
Publisher : The Korea Society for Legal Theory and Practice Inc.
Research Area : Social Science > Law
Received : October 23, 2023
Accepted : November 25, 2023
Published : November 30, 2023

Park, Bongkyun ¹

¹서울지방경찰청

Accredited

ABSTRACT

Search and seizure is a serious concern when an individual is directly involved. Moreover, this applies even if it is executed indirectly in a place related to the individual. The legislation was revised to reflect this social situation. The warrant copy issuance system was implemented in 2022, and the electronic warrant system is scheduled to be implemented in 2024. The introduction of a search-and-seizure pre-interrogation system was promoted in 2023, but implementation was postponed due to opposition from related agencies. Recently, the Supreme Court has placed importance on suspect’s Notice Presence Right in search and seizure upon electronic information stored by third parties. In other words, even if a third party arbitrarily submits data storage media or becomes a direct target of search and seizure, the position is that if the suspect is a data subject, the suspect is regarded as a ‘substantial person subject to search and seizure’ and his Notice Presence Right is rightly acknowledged. The term ‘Third Party’ in search and seizure presupposes the perception that the suspect is subject to search and seizure. Furthermore, the attitude of recognizing everyone as a third party in criminal proceedings without distinguishing between witnesses at the investigative stage and personal information processors causes the problem of focusing the discussion solely on search and seizure of electronic information, thereby diminishing the practical value of personal information protection. From a perspective of personal information protection, this study addresses whether there is any correlation between the status of third parties such as reference persons and personal information processors who store the suspect's information in search and seizure situations and the person subject to search and seizure upon electronic information. ‘Third Party’ cannot be considered a term in criminal law theory, and its content is ambiguous, so it is not appropriate for establishing the concept and scope. Therefore, in this study, the concept of ‘Information Service Provider’ was defined. Information Service Providers are private juristic persons among personal information processors whose requirements, scale, and scope of business are specifically regulated by public laws. As a result of reviewing the legal status of the stakeholders subject to search and seizure upon electronic information stored by third parties, we learned two followings. First, our review is the freedom of Information Service Providers which are deprived by information collection of the State. Findings are that the freedom are different depending on how they are directly or indirectly restricted. In other words, the confidentiality and freedom of private life are restricted when collecting information directly about individuals. On the other hand, indirect information collection through Information Service Providers restricts the constitutional right to Self-Determination on Personal Information. Second, our review is the legal interests of privacy protection and the legal status of Information Service Providers. Findings are that data subjects’ legal rights in terms of personal information protection are for Information Service Providers, not for personal information. The theory of search and seizure upon a suspect might be directly applied to the information collection from Information Service Providers. Regrettably, the legal status of Information Service Providers as guardians of personal information protection becomes meaningless. Additionally, investigative agencies are at a crossroads where they must make an onsite legal judgment as to whether electronic information constitutes personal information. Also, the personal information files electronically stored by Information Service Providers result in the suspects’ ownership claim. In those situations where both sides are at odds with each other, the rapid release of suspects from criminal proceedings will be a distant task.

KEYWORDS

Third Party, Electronic Information, Search and Seizure, Notice Presence Right, Personal Information, Information Service Provider

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Legal Theory & Practice Review 2023 KCI Impact Factor : 1.03