온라인 수색과 헌법상 기본권

Abstract

With the development of information and communication technology, crimes using information technology are evolving, and the seizure and search of smartphones and computers in criminal investigations is a necessary and convenient means of collecting evidence. In recent years, the dark web has led to an increase in criminal activity, such as drug dealing and child sexual exploitation. Online investigation is one of the newest techniques to combat these cyberspace-enabled crimes, which is “the act of a state accessing a target's IT system without the target's knowledge and collecting information therein.”
 The need to introduce online investigation is also being discussed in South Korea. If online investigation is introduced in Korean criminal procedure, new legislation would be required. Germany, the United States, the United Kingdom, and other countries regulate online investigation. In particular, in Germany, the law stipulates the requirements and procedures in detailed terms after the decisions of the Federal Constitutional Court.
 If online investigation is introduced, it should minimize the restriction of constitutional rights. Online investigation can severely restrict the right to privacy, the right to self-determination over personal information, and the right to freedom of communication. In regulating online investigation, the crimes that can be investigated online must be strictly limited and it should be a last resort. Furthermore, procedural control by judges, management and supervision of the enforcement, deletion and destruction of collected information, and notification to the targeted person should be carefully stipulated.