전기통신사업법상 통신 이용자 정보 제공 요청 규정의 쟁점 및 개선 연구

Abstract

Recently, the issue of abuse by investigative agencies under the Telecommunications Business Act (“the provisions of this Act”) has been increasingly raised in Korea, and the number of requests by investigative agencies under the provisions of this Act has decreased considerably compared to approximately 10 years ago. However, these figures have increased slightly over the past three years. The Telecommunications Business Act’s regulations for requesting information on communication users are believed to ensure the speed, trafficking, and efficiency of investigation and information collection activities in the initial investigation stage, thereby effectively protecting public well-being. Therefore, the legislative purpose or the purpose of this law’s regulations is justified. In addition, the telecommunications business operator clearly stipulates that the investigative agency can freely reject the request for providing communication user information under the Telecommunications Business Act; therefore, this can reasonably be regarded as “an arbitrary investigation.” Unlike the regulations on requesting data to confirm communication facts under the Communications Secret Protection Act, which requires court permission or warrant, Korea (like Germany) has separated the regulations on requesting information on communication users under the Telecommunications Business Act from Article 54 (3) of the latter Act, as Act No. 6230 of January 28, 2000. It does not require court permission or warrant. Both the Constitutional Court of Korea and Germany judge this law as constitutional. Therefore, amendment of the provisions of this law in the future to receive new court permission or warrants is not necessary. Conversely, the regulations for requesting the provision of communication user information under the Telecommunications Business Act pose a problem in that they can be abused by investigative agencies because the subject of the collected information is rather broad. Additionally, the Communication User Information Provision Request Regulations of the aforementioned Act allow the collection of resident registration numbers and detailed addresses that contain various important personal information of the individual communication user within the scope of the collected information. This is contrary to the principle of minimum infringement and balance of legal interests in the principle of balancing test, and the communication user’s right to self-determination of personal information may be violated. Therefore, in the future, improvement of the provisions of this Act is desirable so that investigative agencies can request the provision of communication user information to the minimum or appropriate extent. In addition, strengthening the communication user’s right to self-determination of personal information is desirable by improving the regulation to provide only the “name, date of birth, simple address (about the name of the city or neighborhood), phone number, ID, subscription, or termination date” of the communication user.