수사기관의 클라우드 데이터 접근에 관한 비판적 고찰 : “데이터 예외주의” 논쟁과 각국의 실행을 중심으로

In the past, when law enforcement agencies investigated crimes, most of the relevant evidence was tangible and the evidence was also located in their jurisdiction. In addition, if evidence or witnesses are located in another jurisdiction, it has been a traditional method to obtain the cooperation of the relevant country through the Mutual Legal Assistance(hereinafter “MLA”) process to collect them. However, with the increasing need to collect intangible data stored abroad for criminal investigations today, it has become common practice for law enforcement agencies to request service providers who actually hold or manage data rather than traditional MLA procedures. However, advances in cloud computing technology are also causing most global companies to store data in the cloud, making it impossible to know the physical location of data. These issues are being raised in courts of different countries, various precedents are emerging, and even among scholars are being debated. In addition, countries are trying to resolve the issue by law-making. In this paper, it was intended to critically review the "data exceptionalism" debate on the issue of deriving in accessing extraterritorial data, particularly cloud data, and the implementation of each country to solve this problem through legislation and precedent. In conclusion, due to the nature of data management, it is not possible to apply traditional territoriality approach to cloud data, and the establishment of jurisdiction should be judged with access authority of data. In addition, referring to other legislative examples, Korean government also needs to amend or enact relevant legislation to provide clear legal basis for access to extraterritorial data by law enforcement agencies.