디지털증거 역외 압수·수색 쟁점 고찰

Abstract

Therapid development of information and communication technology has caused a major challenge in terms of protecting core industrial technologies. The government has designated technologies directly related to a national interest as ‘national core technology’ and is making all-out efforts to protect them; however, technology leaks are still occurring constantly. Most of technologies stolen in Korea leak to Chinese; accordingly, the Korean law enforcement authorities often require China’s judicial cooperation to track down leakers, but China is not fully cooperative. To make matters worse, in many cases, the traces of the crime are stored on servers outside Korea. In 2017, two courts ruled differently on the law enforcement agencies’ search and seizure of Chinese e-mail accounts through the network. The appellate court claimed that the agencies had violated the other country’s judicial jurisdiction. On the contrary, the Supreme Court ruled that violation of judicial jurisdiction did not occur because the whole process of the search and seizure was actually executed in Korea and was based on the warrant issued legally. In the U.S., the government enacted the SCA-the Act allows search and seizure of remote data-in 1986. Also, after experiencing the dispute with Microsoft Corp. over the search and seizure of overseas data, the U.S. government enacted CLOUD Act in order to establish clear grounds for its access to offshore information, in 2018. Many European countries have regulations concerning offshore search and seizure as well, but Korea doesn’t have one. Without a doubt, the key to a successful cyber crime investigation is a quick acquisition of digital evidence. Therefore, before it is too late, the Korean government should make efforts such as international cooperation in criminal matters, enactment of laws that not only protect the people’s privacy but also fully reflect the characteristics of digital evidence, etc.