수사목적 클라우드(cloud) 압수수색의 현재와 미래 - 한국과 미국의 최근 판례·실무 비교를 중심으로

Abstract

Compared to the U.S., the legal development of cloud seizures through devices in Korea is very detailed. This is due to the difference in the method of cloud seizure. Cloud seizure of devices involves many complex issues. This is due to the overlap between the "on-site" nature of the seizure, where the suspect is in close proximity, and the seizure of so-called "third-party stored information," which is managed by a remote ISP rather than the suspect's cell phone. In situ seizures involve environmental factors that make it difficult for law enforcement to conduct detailed searches, such as selecting what to seize, and the same applies to cloud seizures of third-party stored information. This makes it very difficult to find a balanced jurisprudence. Nonetheless, given the growing concern over the violation of fundamental rights by the seizure of digital information, it is likely that more stringent restrictions will be imposed on cloud seizures through devices. It is likely that many of the issues currently being discussed in the U.S. regarding direct seizures of cloud companies will eventually evolve to apply to cloud seizures of devices in Korea. The specificity of the seizure targets (cloud accounts, etc.) examined in this study, as well as the submission of the recently hotly debated seizure execution plan, suggests that this shift has begun. The government's recent plans to join the Budapest Convention on Combating Cybercrime are likely to accelerate this movement. Ministry of Foreign Affairs Press Release, Submission of Intention to Join the Convention on Cybercrime (aka 'Budapest Convention'), October 11, 2022. The recent surge in child sexual exploitation cases in Korea has raised calls for the country to join the Convention, and the government submitted a letter of intent to join the Budapest Convention to the Council of Europe in October last year. Once the convention enters into force, it is expected that the aspects of cloud seizures in each country will be gathered in a fairly similar direction. However, it will take a long time to finalize and implement specific agreements. As discussed above, cloud seizures involve complex issues. These include the overlap between on-site seizures and seizures of third-party stored information, the infringement of fundamental rights and specificity of compulsory disposition, offshore seizures, the manner in which seizures are enforced, and international law issues such as accession to the Budapest Convention. And as technology evolves, so does the jurisprudence. This is why we need more attention from academics.