정보통신서비스 제공자가 보관하는 전자정보에 대한 수사기관의 압수·수색의 적법 요건 검토

Abstract

Until now, theories and precedents have reviewed the legal requirements under the premise that the investigative agency's acquisition of electronic information generated and stored by a suspect from an information and communication provider's server such as Kakao Talk constitutes seizure and search. However, the act of an investigative agency acquiring electronic information related to a suspect from an information and communication service provider's server, such as Kakao Talk, limits the confidentiality and freedom of the suspect's communication. In this respect, it can be said that the actions of investigative agencies are similar to the concept of wiretapping under the Communications Secret Protection Act in terms of limiting basic rights. Since the act of acquiring electronic information by an investigative agency is a state action and should not infringe on the basic rights of the people, it should be reviewed whether it violates the principle of proportionality. If the investigative agency acquires electronic information from the server of the information and communication service provider even though it can achieve the purpose of the investigation by acquiring electronic information from the suspect's terminal, it is contrary to the minimum of damage and the balance of legal interests. Therefore, in order for an investigative agency to obtain electronic information from an information and communication service provider's server, 'the circumstances in which the purpose of the investigation cannot be achieved in any other way' must be clarified. It is reasonable to operate the warrant practice in this way, and it will be necessary to stipulate it in the Criminal Procedure Act in the future.