수사․정보기관의 통신정보 수집에 관한 비판적 연구 - 전기통신사업법 및 통신비밀보호법의 문제점 및 개선방안을 중심으로 -

Abstract

The question of collecting private information to conduct a criminal investigation, or other similar purposes, has become a hotly debated social issue these days alongside the explosive development of information technology. The nature of information and communication has also changed. It is no longer just collected from wired lines or pagers as in the past. Information can be accumulated in smartphones or computers (as logging data, for example), stored in servers and become a basis for big data sets. In short, information is no longer volatile—i.e., it will linger. Voices, from academia and various interested fields, are saying that the current legal system that was organized during the analog era is no longer applicable in the digital age. The Supreme Court’s decision last year on the Kakaotalk eavesdropping case perhaps represents the apparent discrepancy between the letter of the law and its practical application on the ground. If the legal system is to avoid the criticism that it is creating confusion on the ground because it no longer applicable to real-life situations, the emerging legal structure has to evolve along with the advances in the IT technology—such as ICT, AI, big data, etc.—and become harmonious with the changing paradigm on private information. This thesis, in recognition of the current state of affairs, recommends the following steps: 1) First, the abuse of power precedents on private information collection, which are related to eavesdropping and communications data provision protocols, as well as the precedents on communications data provision activities by investigating agencies as related to portal sites, among all the activities performed by intelligence agencies, should be utilized to glean how investigating intelligence agencies collect information now; 2) second, the currently in-effect systems on data provision on the proof of communications and communications data provision should be investigated and differentiated; 3) finally, problems that need to be fixed should be identified and appropriate solutions offered. Article 17 of the Korean constitution states, “The privacy of no citizen shall be infringed.” Article 18 states, “The privacy of correspondence of no citizen shall be infringed.” Also, the Constitutional Courts recognizes the right to self-determination on private information, although it is not a right enumerated in the constitution. Of course, it is not an absolute right that could constrain other fundamental citizen’s rights, but the issue of inquiring into secret communications data is a very sensitive issue that should be considered a matter of constitutional concern. Our constitution guarantees the right to privacy as a fundamental right; the warrant requirement is also stated in the constitution. It seems that there is a dire need now to search for the common ground between the following two basic goals: the fundamental value regarding the protection of individual’s privacy, and the need to maintain social order and national security.