GPS 추적 수사의 법적 성격에 관한 연구-미국의 최근 판례 동향을 중심으로-

Abstract

Real-time GPS tracking investigation is a useful investigation technique, but there is a high risk of privacy infringement if abused. There is no precedent for GPS tracking investigation in Korea and legislation has not been made. The legal nature of the GPS tracking investigation and the approval procedure are unclear. As a result, if an investigative agency tracks GPS location information, it is unclear whether it is illegal or what procedures and requirements are needed to make it legal. In order to resolve this uncertainty, legislation is needed. For legislation, it is first necessary to stipulate the legal nature of GPS tracking investigations. To this end, it is necessary to look at GPS location information tracking precedents in the United States. It is firmly established that the act of investigative agencies tracking individual GPS location information for a considerable period of time constitutes a search for Article 4 of the Amendment. In Korea, GPS tracking investigation for a considerable period of time is an act of retrieving personal privacy information, and it can be said to be a compulsory disposition that restricts basic rights because it violates freedom of privacy, secrets, and secrets of communication, which are constitutionally protected rights. If so, it is necessary to stipulate the law according to the legal principle of compulsory disposition. In order to clearly and specifically implement the legalism of compulsory disposition, it would be desirable for GPS tracking investigation to be regulated by special laws such as the Communications Secret Protection Act and the Location Information Act. GPS tracking investigations conducted directly by investigative agencies need to be designated as “communication restriction measures” in addition to existing mail censorship or wiretapping under the Communications Secret Protection Act. GPS tracking investigations by investigative agencies through third parties such as telecommunications operators and location information providers need to be designated as “communication confirmation data” in addition to existing base station data under the Communications Secret Protection Act. In this way, the Communications Secret Protection Act can function as a “other law” of the Location Information Act and eventually be regulated by the Communications Secret Protection Act, as the Location Information Act stipulates that personal location information can be provided to third parties. In addition, warrantism is applied to compulsory disposition under the special law, and the Constitutional Court ruled that the court's permission procedure for requesting communication confirmation data under the Communications Secret Protection Act does not violate warrantism.