한국과 미국의 통신감시 상황의 양적 비교 및 최근의 변천 - 기지국수사, 대량감시, 통신자료제공, 피감시자통지를 중심으로 -

Abstract

Communications surveillance in Korea is alarming. Per capita, acquisition of subscriber identity data is 60 times, wiretapping 9.5 times, pen register/trap and trace data 2 times, cell tower dumps 5 times the U.S., even taking into account NSA and Foreign Intelligence Surveillance Court procedures put into controversy by the recent Snowden revelations. Specific instances of surveillance are noteworthy: seizure of 7 years worth of electronic mails for a campaign financing investigation into a local school board supervisor election, which lasted for 3 weeks; renewing a wiretapping order 14 times over several years. Especially, cell tower dumps involve astronomic amouns of communication metadata, and their constitutionality under the warrant doctrine must be closely examined for they constitute a search on a specific individual with reasonable suspicions but a search for such person. The decisions from U.S. lower courts denying or restricting the conditions of cell tower searches are informative in that regard, and so should the international human rights statements evaluating the mass surveillance conducted by NSA and FISC in the similar spirit of a search for a suspect. Also, warrantless acquisition of subscriber identification data, while violating the warrant doctrine itself, also greatly facilitate, and thereby incentivizes the investigatory authorities into, mass surveillance by allowing the authorities to check the identities of otherwise anonymous callers en masse. The April 2014, Spencer decision from the Canadian Supreme Court striking down a law allowing such warrantless access should be consulted, and also the Marco Civil of Brazil passed in March of the same year also established that the identification data must be accessed only through a court order. Another reason for massive expansion of communication surveillance in Korea is the lack of timely notification to the surveilled. For instance, the notifications of wiretapping, metadata acquisition, and electronic search and seizure are allo given not on the N-th day after execution but on the N-th day after the investigation is completed and the indictment/no indictment decision issued, which means often the surveilled find out about the fact of surveillance for the first time in court when the prosecutors present the incriminating transcripts in evidence. Subscriber identification data, being warrantlessly accessed, are also accessed without notifications to the subscribers. Also, the recent telecoms’ refusal to let their users in on whether the subscriber identification has been done on them is also violative of the subscribers’ rights as the consumers. The lack of notifications insulates judges from feeling the real pervasiveness of surveillance and hampers their efforts to balance privacy and public interest properly, allowing the surveillance disproportionate in quality and quantity.