전기통신사업법상 통신자료 취득제도의 위헌성에 관한 고찰 — 헌재 2022. 7. 21. 2016헌마388등 결정에 대한 비판적 검토를 중심으로 —

Abstract

On July 21, 2022, the Constitutional Court of Korea ruled that Article 83, Paragraph 3 of the Telecommunications Business Act, which regulates that investigative agencies can request telecommunications data from telecommunications service providers to acquire user’s data, do not conform to the Constitution. While recognizing the need for timely acquisition of telecommunications data for efficient investigations, the court judged that the lack of post-notification procedure to service users, who are the subjects of the data acquired, violates the principle of due process. The decision is meaningful because the lack of post-notification procedure is necessary to dispute the legitimacy of the restriction on basic rights. However, the Court's recognition of the legitimacy of the telecommunications data acquisition system itself is regrettable given that the data that can be obtained without a warrant or court permission includes data that can serve as a linkage to other information, such as “ID” or “resident registration number.” Furthermore, the reasons for the request are also very broad, leaving room for abuse by investigative agencies. This thesis critically analyzes the Constitutional Court's decision from the determination of the legal requirements to the determination of the unconstitutionality of Article 83, Paragraph 3 of the Telecommunications Business Act. After examining the unconstitutionality of the provision, this thesis proposes legislative alternatives that can prevent the potential abuse by investigative agencies and minimize the restriction on basic rights of citizens.