데이터 보관 사업자에 대한 영장집행 절차의 현실화 방안에 관한 연구: 피의자에 대한 사전 통지 생략 및 영장 사본제시 필요성을 중심으로

In the past, investigative agencies have acquired contents or transaction logs kept by operators such as telecommunication data, telecommunications data, and financial transaction data in concert with a company that keeps data. However, the widespread requests for data from investigative agencies and reckless data provision by the operators caused concerns that the Right to Self-Determination of Personal Information would be violated, and there was also a need to protect it. To acquire e-mail or financial data, the investigative agencies execute a search and seizure warrant, but the execution process of the warrant against the company who keeps the data is completely different from the compulsory enforcement procedures against property and place. Nevertheless, our court, while showing an attitude to strictly apply the rules that had been applied to the compulsory raids to less intrusive data acquisition, assesses that it is illegal to exclude suspects in the site of data acquisition or to execute warrants using fax. Before the revision of the Criminal Procedure Act in 2007, there was a debate over whether to recognize the admissibility of evidence if an object illegally seized was worth the evidence. At that time, there were even arguments that minor procedural violations should be tolerated in order to discover the real truth. Therefore, the strict application of the Criminal Procedure Code provisions applied in the area of compulsory investigation, despite the fact that no force is exercised in acquiring the data held by the company, and the voluntary and transparent method is used, does not reflect any investigative practices regarding data acquisition. After examining changes in data acquisition methods, characteristics, and the nature of the special laws related to them, the author will argue that it is not appropriate to apply the existing regulations of search and seizure warrants to the acquisition of data kept by the company. Rather, what should be particularly emphasized in data acquisition is not the rigor of search and seizure procedures, but the right to self-determination of personal information should be properly protected. In addition, in order to protect it, we should focus on strengthening the management and supervision of data movement, and modifying the notice process for a party to personal information in the execution of search and seizure warrants, as detailed by the Protection of Communications Secrets Act or Act on Real Name Financial Transactions and Confidentiality.