독일의 휴대전화 위치정보추적수사와 당사자에 대한 통보제도- 통신비밀보호법 일부개정법률안에 대한 평가와 개선방안을 중심으로 -

The cell site location information investigation about Mobile Phone needs for efficient control of misuse and abuse of investigation because it entails an infringement of liberty of communication, privacy, and the right to self-determination of private Information. In addition, it is a serious problem that in the process of tracking cell site location information, personal information and intimate privacy information of people not related to crime as well as criminals are gathered in investigation agencies. The Constitutional Court ruled decision of unconstitutionality about some legal provisions of the Protection of Communications Secrets Act : (1) It was the infringement of freedom of Communication and the right to self-determination of private Information that demand only the necessity for investigation as substantive requirements for obtaining the permission of the court in relation to the acquisition of mobile phone’s location information. (2) Notification of Provision of Communication Confirmation Data for Criminal Investigations infringed the right to self-determination of personal information. Accordingly, the Ministry of Justice submitted a revised bill to the National Assembly in 2009 for the revision of the Protection of Communications Secrets Act. In this article, I reviewed the German legal system for the cell site location information investigation and notification provisions comparatively and examined the revision bill of the Ministry of Justice's the Protection of the Communications Secrets Act. As a result of the review, the amendment bill of the Ministry of Justice contains more advanced content than the current the Communications Secrets Act, but I think there are some points to be improved. First, it is required to strengthen substantive requirements as a priori control when acquiring Communication Confirmation Data by investigative agency. It is reasonable to allow only for important crimes such as crime subject to communication restrictions. It needs to be considered to add the principle of proportionality and importance of individual and concrete matters in addition to the necessity requirements in past cell site location information investigation and add subsidiarity principle together with the above requirements for real time cell site location information investigation. In addition, restrictions on offering period of location information should be newly established. Second, considering the extension of the reason for the notice deferment in the amendment, the court should judge the reason for the notice deferment. In addition, the legal process to appeal against the illegality of procedures of the communication confirmation data’s application, permission and execution should be guaranteed by the notified party. Lastly, for secure the effectiveness of the notification system, a fine charge clause should be established for violation of the notification obligation.