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A Review on Legal Nature of Search and Seizure upon Electronic Information Stored by Third Parties - Focusing on Investigation Authorities’ Indirect Collecting Personal Information -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2024, 12(3), pp.451-486
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : July 29, 2024
  • Accepted : August 24, 2024
  • Published : August 31, 2024

Park, Bongkyun 1

1서울지방경찰청

Accredited

ABSTRACT

The prevailing view in academia is that the warrant principle should be applied to personal information collection activities by investigative agencies. However, due to the emphasis on applying the warrant principle, search and seizure appears to have been chosen as the method of information collection. In other words, personal information cannot be evaluated as an object because it is derived from personality rights under the Constitution. However, since it is clear that personal information is not a person, it is believed that it was classified as an object and then a search and seizure where warrant doctrine could be applied was selected. For this reason, when an investigative agency collects personal information from a personal information processor who is a third party in a criminal proceeding, electronic information search and seizure is taken for granted as a way to guarantee the information subject's right to self-determination of personal information. So, can an investigative agency conduct a search and seizure of a third party who is not suspected of a crime to collect information? In this paper, we examined whether search and seizure by investigative agencies as a method of information collection at the investigative stage is appropriate in terms of interpretation of criminal law from the perspective of restrictions on the right to freedom. This paper is significant in that it examines problems in the execution of electronic warrants scheduled for the enforcement of the Criminal Procedure Electronic Documents Act and presents the theoretical basis necessary to supplement the execution method. Search and seizure of information providers as an indirect method of information collection by investigative agencies has the following problems. First, since it is a compulsory investigation of a person who is not suspected of a crime, it may infringe on the freedom of business of information companies and the physical freedom of personal information handlers who do not passively cooperate. Second, if the investigative agency's information collection involves an information provider's actual act of providing information, there is no directness in the information collection act in relation to the information subject. Therefore, the information subject cannot appeal the information collection by the investigative agency. The collection of information by investigative agencies regarding information providers must be done in a legal manner. In particular, if the information is personal information, legal reservations are required for information collection activities. The content of the legal reservation is not only the basis for the investigative agency's information collection, but also imposes an obligation on the information provider to cooperate with the investigative agency's request to provide information. The information provider's obligation to cooperate is clearly demonstrated in communication confirmation data. Telecommunications business operators must cooperate with investigative agencies' requests to provide communication confirmation data. (Article 15-2 of the Communications Secrets Protection Act) The coercion that appears here is not realistic coercion but legal coercion. I believe that the reason investigative agencies have so far relied heavily on search and seizure to collect information is because there is no legal reservation regarding legal coercion.

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