통신사실확인자료 제공 제도의 문제점과 개선방향

Abstract

On June 28, 2018, the Korean Constitutional Court has held the collection of cell tower metadata and the collection of real-time location data by criminal investigative authority based on Article 13 (1) of Protection of Communications Secrets Act(PCSA) as unconstitutional and ordered reform enactment until 31 March, 2020. 　　　This article analyzes the general problems of the communication confirmation data(so-called ‘metadata’) provision system and proposes a reform direction of Article 13 (1) of PCSA. Although communication metadata is not information about communication contents, comprehensive analysis of metadata can not only indirectly deduce the contents of communication but also infer internal activities related to the privacy of the information subject. Therefore, the traditional theoretical premise that the intensity of infringement of fundamental rights by the collection of communication metadata is lower than the collection of contents data is no longer valid today. Moreover, it is also possible to provide real-time metadata in the future according to Article 13 (1) of PCSA, which should in fact cause the infringement of the fundamental rights at the same level as the contents data interception. Nevertheless, the provision of communication metadata is very broadly and easily permitted under the comprehensive requirement of "necessity for criminal investigation" and without limitation of applicable crimes or target persons. Therefore, fundamental reform of the system for providing the metadata is indispensable. First, the applicable crimes should be limited to a level similar to that of the eavesdropping. Second, the target persons should be limited to the person who is suspect, mediator for the suspect, or the owner of the telecommunication account for the suspect. Third, the procedural requirements shall specify the proportionality and complementarity requirements as well as the specific crime charges of target crimes. This article emphasizes that it is appropriate to strictly limit the collection of metadata to exceptional and supplementary investigation methods. As a result of the improvement of the communication data provision system as a whole, more strengthened requirements should be set up on the collection cell tower metadata and collection of location data.