피체포자의 휴대전화 압수와 그 내용확인의 적법성

In this paper, considering the characteristics of information stored in the mobile phone, we examine the legitimacy of checking the contents of the digital information stored in the cellular phone that was seized at the time of arrest. We analyze the Riley judgment in the United States and look for a rational way to collect and preserve the digital information stored on the mobile phone as a proof from the viewpoint of the Korean Criminal Procedure Law. However, since mobile phones do not have a common operating system (OS), there are many different ways to replicate memory for each manufacturer. In addition, as an investigation agency that does not know what kind of cell phone the eavesdropper uses, It is not easy to have software or equipment suitable for the cell phone to be confiscated. In addition, when copying mobile phone memory, it is controversial whether it is technically possible to restore deleted electronic information and to sort and seize electronic information related to the crime fact. Since it is easily influenced by electromagnetic waves, It is very difficult to copy or transfer the electronic information of the telephone to other media Therefore, it is necessary to protect the private information in the information stored in the mobile phone and measures and measures that can reasonably improve the investigation of mobile devices such as cellular phones. So I analyzed the Riley judgment of the United States and suggested the method and measures. First, both the emergency disposal theory and the incidental disposal theory may adopt a logic that requires a separate verification warrant to confirm the information stored in the cellular phone that has been seized with arrest. Secondly, even if a warrant is demanded, it require, as a method and measures to effectively protect private life, ① adopt a minimization measure based on a two stage process, ② specify specific information to be acquired, ③ Filtering the information, and (4) limiting the period of use and preservation of information by legislation. In the case of (1) and (3), it is preferable to construct an algorithm and automate it rather than the investigation agency itself. for example, if you understand that you do not require a warrant to confirm the contents of the information stored on your mobile phone with the arrest, if you seriously consider that the amount of information stored on your mobile phone is at least ①, ③ and ④ It shall be stipulated as the duty of the investigation agency. However, in the current situation, it is judged to be governed by a warrant. In other words, it is desirable to have reissued a verification warrant to seize the cellular phone by the seizure and search warrant and confirm its contents.