영장주의의 예외와 휴대폰 전자증거 수색의 한계 - 미국의 United States v. Cano 판례 (2019)와 관련하여 -

Abstract

A warrant issued by a judge is required for a search and seizure. In the past, physical intrusion into individual dwellings and search for tangible objects were the main concerns. However, with the advent of the digital era, search for electronic information stored in digital devices such as smart phones and laptop computers is becoming a more prevalent issue. Now, with the rapid development of science and technology, the traditional scope and interpretation of the warrant requirements and exceptions to them need to be changed. In the past, with regard to the scope of the border search exception, the US Supreme Court ruled that search for electronic information stored on laptop computers of incoming travelers at the border without warrants was legal. However, according to the subsequent Cotterman and Cano rulings, forensic search of electronic information stored on laptops and cell phones needs a warrant even for a border search. If we look at the flow of these precedents in the United States regarding warrant requirements and the interpretation of the scope of the exceptions, we can recognize changes to the traditional interpretation of the reasonable expectation of privacy to reflect the characteristics of new digital devices and new scientific investigative techniques. The interpretation of the law should address the emerging scientific phenomena so that the original purpose of the law can be maintained. The characteristics of new digital devices, digital evidence and scientific investigative techniques, etc. should be considered for a reasonable interpretation of law. The Supreme Court of Korea still admits digital evidence stored on cell phones obtained by warrantless search and seizures based on the theory of voluntary submission. However, reflecting the new technology, the Supreme Court of Korea should change its opinion so that the original intent of the warrant requirements, including the protection of personal privacy, is not rendered meaningless. This paper examines the US v. Cano opinion in the United States on whether a warrantless search of an entrant's cell phone at the border is allowed under the theory of border search exceptions, and reviews the implications of U.S. cases for the interpretation of Korean law and legislative policies related to the exceptions of warrant requirements in the digital age.