첨단감청 시대의 통신비밀 보호방안

Abstract

This article is designed to devise a preemptive response of the legal system to the advanced wiretapping technologies. That is, this paper is intended not to interpret the current legislation but to draw up a new discourse that corresponds to technology. Therefore, legal discussions are conducted on the basis of a review of the technical elements of wiretapping in the overall and the main content is to devise the reform of the legal system centered on the legal issues derived from this process. The first part of this article is allotted to reviewing the current wiretapping technology and analyzing the legal confusion arising from the perspective of the technology. First, it was classified as voice communication, data communication and next-generation communication and a brief legal analysis was conducted based on the characteristics and trends of these technologies. Then, the wiretapping technology was divided into cases of ‘kidnap’ and ‘invasion’ to describe the confusion arising from the wiretapping of the current legislation. Regarding the kidnapping method, it was reviewed that the wiretapping standard of the current law, which is a requirement of real-time, is already technically meaningless. In the case of invasion methods, I specified the limits of our legislation that could not distinguish between hacking and cracking. Based on this technical trend and understanding of the confusion of legislation, a full-scale legal review was conducted in the middle part of this article based on a technical point of view. Firstly, I analyze the problem of classification. Since the current approach to classification as voice communication and data communication is no longer meaningful due to the digitization of voice communication, it is rather reasonable and effective to approach direct and indirect wiretapping in its classification. Second, when the method of invasion is carried out, it has been argued that invasions which are aimed at wiretapping have the function of search and seizure, and invasions that are the purpose of the search and seizure have the function of wiretapping at the same time. In other words, it is necessary to change the legal concept to set up a clear boundary between wiretapping and the search and seizure. Third, the possibility of application for new technological environment was examined for ‘interference in transmission and reception’, which is defined by the current law as a type of wiretapping. It has been argued that if the new form of wiretapping can be accepted as an open concept, it can be used as an effective regulatory measure for next generation communication technologies. Following this analysis of the issues from a technical perspective, the last part of the article considered major issues from a legal policy perspective. First, it was suggested that in the current digital communication environment, it is desirable to ensure that there is no gap in the protection of basic rights by taking into account the search and seizure under the Criminal Procedure Act and the wiretapping under the Protection of Communications Secrets Act at the same time. Next, it was pointed out that there is a need to conceptually and systematically distinguish between wiretapping for investigation purposes and wiretapping for security purposes. In practice, it may be necessary to vary the scope of wiretapping and the level of technology used, but above all, it is necessary to prevent misuse and abuse of wiretapping. Finally, it is detailed about the blank space of basic rights. When looking at the information that is subject to the protection of communications secrets, there is a gap that can not be filled even if rights of the protection of communications secrets and the personal information self-determination and privacy are applied. In this regard, I have argued for the necessity of introducing the so-called “fundamental rights of IT” which was declared as a new fundamental right in Germany.