수사⋅정보기관의 통신이용 정보수집권에 관한 미국의 입법례와 그 함의 - 「2015년 미국 자유법」에 대한 검토를 중심으로 -

Abstract

The investigative or information authorities’ right to collect information or materials on telecommunications held by telecommunication service providers may be divided into access to the content of communications, access only to information on whether communications are made, and access to personal information of communicators. Further they may be distinguished between real time access or access to past facts. The domestic laws require courts’ warrant or permission to monitor the content of communications in real time and obtain communication verifying materials, and communication materials including personal information of communicators are placed in the realm of voluntary disposal. In practice, however, there is a confusion that information subjects claim for damages with respect to the provision of materials by telecommunication service providers. In the United States’ legal system, information or materials on telecommunications are bifurcated by and large into the content of communications and any other records and information. As for the latter records and information, either a voluntary provision or a mandatory provision is applicable as the case may require, and the mandatory provision, it is required to obtain courts’ warrants or permissions and an administrative agency’s request for documents is also permissible. Besides, information authorities are allowed to collect basic call tolls and transaction details or relevant telecommunication materials without a court’s warrant or permission. The communication confirmatory materials under the Korean laws may be considered in nature the “call detail records” specified in the newly enacted 「USA Freedom Act of 2015」. The Act should be a good example for domestic legislative efforts in the future. The laws are sought to keep in check information authorities’ indiscriminate collection of information on use of telecommunications by obligating them to limit target objects by using a specific selection term upon request of call detail records. Moreover, the laws divide call detail records into single records and ongoing records, and as to the ongoing call detail records, more strict requirements for collection are specified. As for the communication materials under the Korean laws, like the U.S. laws, it should be necessary to make a voluntary provision and a mandatory provision as the case may require. In a voluntary provision, it should be a provision to expressly permit voluntary disclosure of relevant information or materials depending upon a telecommunication service provider’s determination of urgency. In order to ensure efficient implementation of the voluntary provision, it may include a provision to permit legal exemptions for a telecommunication service provider having provided communication materials in good faith. In the mandatory provision, it is required to specify the types and conditions of serious crimes and requiring urgency, and to stipulate additional requirements to obligate relevant authorities to put in place detailed and appropriate procedures for retaining relevant information to a minimum extent and prohibiting disclosure of information, etc.