스마트폰 압수, 수색에 대한 헌법상 쟁점

Abstract

The title of the newspaper article, “If caught, throws away from the phone”, stands for a new legal, social and political debate that is destroying smartphone privacy in relation to law enforcement. As the generation and storage of digital information is becoming commonplace in the modern society, the search for the computer used by criminals or the server storing the information has become an essential procedure for investigation, and the collection of electronic evidence While it is a decisive factor, the archival vulnerability of mass-produced electronic information often leads to the question of comprehensive confiscation of electronic information obtained by accident investigation agencies. In particular, due to the development of mass storage devices, there is a growing concern that the investigating agency will collect electronic information that is not related to the crime on the search warrant issued to the court, If you do not return it or use it as a clue or evidence of a criminal investigation or other criminal investigation against a third party, you may inevitably infringe on new legal interests. The collection of such electronic evidence is subject to the provisions of the Freedom of Residence Act (Article 16), the secrecy and freedom of privacy (Article 17), the secret of communication (Article 18) It must be accompanied by restrictions on basic rights, which will be a constitutional warrant and proportionate principle. As the excessive amount of electronic information is acquired by the investigation agency beyond the principle of proportionality in the future, the work of institutionalizing it so that there is no possibility of causing serious damage to the privacy of the individual and the operation of the enterprise, It is fortunate that the requirements for seizure search are strengthened in the process of revision, and the methods and procedures of seizure search for electronic information are gradually being improved. However, in addition to these institutional improvements, it is necessary to prepare for itself on the assumption that data in the smart phone can be extracted in the official investigation process regardless of whether the IT related departments, companies, national and local governments, public institutions and fraudsters, do. It is also important to consider rethinking the public education policy on privacy protection of smartphones.