정보영장 제도 도입방안 연구

Abstract

As information technology and services grow, so do the level of people's expectation of their privacy as well as the difficulty the Law Enforcement meet when finding evidence. To date, notable Supreme Court decisions regarding digital evidences were made on a few cases. With the revision of Criminal Procedure Act, the search and seizure of information is becoming a big issue in Korea as well. But the recent revision of the Criminal Procedure Act is lacking systematic integrity because it was framed upon makeshift provisions on the material objects and its physical locations without defining information itself. This study pointed out six disputes of the revised Criminal Procedure Act; limitations of remote search and seizure, confusion from other act defining execution process of information, lack of legal base to seize information to be used in pursuit of the suspect, lack of compulsory disposition measures to confiscation of information, and etc. The paper will form the concept of the information warrant and suggested the implementation model by reviewing legislations and precedents of the U.S., Japan, Germany and the European Council. The implementation of information warrant is necessary because; 1) information is directly linked with privacy, thus its disposition procedure must be specific and strict, 2) inadequate legislation must be supplemented properly, 3) information processing should be systematically integrated with the Criminal Procedure Act as its core axes, and 4) anomalous warrant practice must be clarified and embraced into legitimacy. Information warrant refers to a warrant system to process the data which was used and/or provided by act of crime, and includes such data that is to be used as evidence, to be confiscated and to be provided to pursue the suspect. The method of data processing in this warrant system should include those nine kinds; copying, duplication, deletion, access and etc. Information warrant will regard the remote-search-and-seizure as a matter of controllability, rather than a matter of location. In addition, the paper reviewed and suggested resolutions for a few expectable disputes when the information warrant were introduced such problem; 1) integrity of legal system, 2) whether to include realtime trace-data in the object of the warrant, 3) access method for remote-search-and-seizure, 4) process of obtained data which is unrelated to crime, 5) deletion after copying as a mean of disposal, and 6) data encryption. Information warrant must be implemented because it will provide enforceability and legitimacy to the executing officer and the right to defend to the individuals. There have been many studies on the search and seizure of information, but putting such approach as this study where putting concepts into one warrant system is unprecedented. The writers expect future studies to follow regarding the legal concept of information deletion, permissible limit of search-and-seizure of foreign data, encryption as means of data disposal and suspension of user account.