「통신사업자의 통신사실 확인자료 및 통신자료 제공의 요건과 절차」에 관한 비교법적 연구 : 미국, 영국, 독일, 프랑스, 일본의 제도 비교를 중심으로

Abstract

This paper reviews legal conditions and procedures for telecommunication companies to provide investigation authorities with communication confirmation data and communication data in the U.S., the U.K., Germany, France, and Japan. The result of the comparative study is as follows. First, it is company’s discretion to provide investigation authorities with communication data without court’s order in Germany, France, and Japan whereas the U.S. requests court’s order or a warrant for communication data and the U.K. allows relevant government ministry to obligate telecommunication companies to provide communication data through an administrative decree. Second, there is no regulation requiring telecommunication operators to keep the data which was given to investigation authorities in the U.S., the U.K., France, and Japan while Germany mandates communication operators keep the data for eighteen months. Third, investigation authorities in the U.S. and Japan may request communication operators to keep communication data before they get court’s order or a warrant. Based on this analysis, the paper recommends as follows. First, the Protection of Communication Secret Act(PCSA) needs revision in a way to require a warrant or court’s order when telecommunication operators provide investigation authorities with communication data conditioned that investigation authorities may request telecommunication operators to keep specific communication data in case of emergency without court’s order or a warrant. Second, the provision that requires telecommunication companies to keep communication data which was provided for investigation authorities must be abolished or the period should be reduced.