미국의 통신비밀보호법(ECPA) 및 범죄수사 통신지원법(CALEA)과 우리나라의 통신 비밀보호법 및 18대 국회 개정안의 비교검토

Abstract

As of March 2009, a bill to amend the Communications Privacy Protection Act is creating a controversy as it proposes to strengthen the obligations of communication service providers to cooperate with law enforcement agencies in having private communications eavesdropped, thereby making interception of electronic mails and mobile communications much easier than now. The bill imposes a new obligation to retain all call identifying information for 1 year, and adds GPS tracking information to call identifying information thereby lowering the warrant requirement for searching the GPS information. This article first evaluates Korean law and practice against the U.S. laws upon which it is based upon, namely, Electronic Communications Privacy Act(ECPA) and Communications Assistance for Law Enforcement Act(CALEA) and assesses the constitutional soundness of the new bill. It finds that the rejection rates for warrant applications for wiretapping or call identifying information are so low as to eviscerate the Korean law's original purpose to subject search and seizure to independent review of the judiciary. Based on this finding, the author proposes to suspend deliberation of the bill expanding the practical scope of interception until the present warrant system is critically reassessed and overhauled in accordance with the constitutional principle of search and seizure. Also, it finds that classifying GPS information as call identifying information falls below the international standard whereby location tracking information is subject to ordinary warrant requirement if the tracking follows into indoor areas. Finally, it also finds the imposition of data retention requirement problematic as the same has been found unconstitutional by the German Constitutional Court, and makes available for search and seizure excessive amount of private information.