디지털증거에 대한 압수․수색에 있어서 대상과 종료시점

Abstract

Digital information has become an important evidence by change in the criminal environment, and the revised Criminal Procedure Act has provided evidence for the seizure and search of digital evidence, but there is some confusion in the interpretation of digital evidence, whether the subject of the seizure and search for digital evidence is the object, such as storage media, or ‘information’ itself, there is a conflict of opinion. In principle, the seizure and search of digital evidence consists of searching for information related to the facts of the warrant and obtaining the things in the shape of output-document, or replicating the files on the portable storage media of investigative agency on the spot of the seizure and search. If this method is not feasible, it shall be carried out in such a way that investigative agencyt takes out the storage media to the outside place. In this case, a separate procedure shall be used to retrieve and extract information related to criminal charges that are carried out externally. It is necessary to identify the nature of the “information retrieval act” after taking out the storage media, namely when it comes to the completion of the warrant execution. In general, the seizure and search of digital evidence containing relevant information and non-residential information is feared to be a major violation of privacy rights. Therefore, it is important to control the collection of unauthorized digital evidence and to ensure legitimacy of the compulsory disposition of digital information, which should be approached in terms of warrant requirement and guarantee of participation right. First of all, in the seizure and search of digital evidence, the target is ‘the objects in a body with information’. We regard the targer of the seizure and search as ‘the information which is stored in the storage media’, not the storage media itself, so that we can delay the end point of execution of the seizure and search warrant, and it is also advantageous in the prosecution of guarantee of participation right. However, since the objects of the seizure in the Criminal Procedure Act are “objects”, digital information can be seizured when everything is done with the storage media. The end point of the seizure and search of digital evidence shall be viewed as the time when the relevant information is sought and extracted on the premise of guarantee of participation right also in exceptional cases.