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A Review at the Problems of Data Seizure Through Remote Access - Implications for Discussions in Japan -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2025, 13(4), pp.547~586
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : November 7, 2025
  • Accepted : November 26, 2025
  • Published : November 30, 2025

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ABSTRACT

While remote access-based search and seizure has become an essential investigative technique in the digital age, it poses several serious challenges. This paper examines the challenges posed by the revised remote access law in the practice of data copying through remote access and provides examples of several legal challenges. As pointed out in the text, cloud computing has become more widespread since its introduction, and it’s undeniable that the remote access provisions are either out of sync with current cloud computing usage patterns or are on hold. While this paper merely raises introductory issues, I hope to conduct more in-depth research focusing on the following issues. The key issues are as follows: First, due process and legal grounds are inadequate. The Korean Criminal Procedure Act lacks explicit provisions governing remote search and seizure, often relying on court interpretation or practical practices. This can violate the principle of legality. While traditional search and seizure targets objects physically located at a “specific location” specified in the warrant, remote seizure transcends the concept of physical location. This makes it difficult to determine the scope of the warrant’s validity and the location of execution. Second, the violation of the fundamental rights of the subject of the seizure (the data subject) becomes a problem. When conducting a search and seizure via remote access, the participation of suspects, their attorneys, and other authorized participants is practically difficult or impossible, making the right to defense ineffective. Digital information is stored in large quantities and often includes sensitive personal information. Remote seizures can lead to the collection of a wide range of information, including irrelevant information, creating a significant risk of excessive seizure, potentially leading to serious privacy violations. Difficulties in promptly providing an accurate list of seized information can restrict the ability of the subject to exercise their rights. Third, ensuring the authenticity and integrity of evidence is challenging. During remote access, there is a risk of evidence being damaged or altered depending on network conditions, and proving the identity (authenticity) of the evidence is more difficult. Unlike physical seizures on-site, remote seizures require compliance with appropriate digital forensic procedures (such as hash verification) and are difficult to verify. Fourth, jurisdiction and international judicial cooperation (in the case of extraterritorial seizures) also present difficult issues. If a server is located overseas, it may conflict with the sovereignty and jurisdiction of that country. Differences in each country's laws and systems make it difficult to secure legal legitimacy. Using international judicial cooperation procedures to secure information from overseas servers can be time-consuming, hindering the prompt acquisition of evidence. Furthermore, the lack of cooperation from the relevant country can hinder effectiveness. To address these issues, it is necessary to establish a clear legislative basis, establish practical procedures to guarantee the right to participation and defense of those subject to seizure, and establish an international cooperative system.

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