이용대기상태의 휴대전화 위치정보 수사의 허용과 입법방향

The mobile phone in the stand by modus communication with the nearest communication base station in order to always maintain a state in which communication is possible. Thus, not only its location can be captured, but the detailed movement profile can be created if it is captured over a long period of time. The capture of this location data and the creation of the mobile profile can be used as a means to monitor, track or arrest criminals. This article covers whether the investigation of such location data is legally permitted. Article 13 of the Protection of Communication Secret Act(PCSA) is a provision that can request only ‘communication confirmation data’ generated by actual communication. On the basis of §13 PCSA, the location data in the standby state can not be requested. The Constitutional Court had the opportunity to examine these issues but did not. In the investigative practice in Germany, it was considered possible in accordance with §100a(telecommunications surveillance) of Code of Criminal Procedure(StPO). In 2006, however, in the case of the collection of mobile phone location data through the IMSI-Catcher, the Federal Constitutional Court(BVerfG) ruled that §100a StPO could not be applied to this location data because there was no communication between people. Through the revision of StPO in 2008, the concept of communication access data so far in §100g StPO has been replaced with the concept of traffic data(Verkehrsdaten). The legislator stated that §100g StPO no longer required communication access as a requirement, so that auch location data could be collected. However, §100g StPO itself did not clearly define this. In 2017 the Telecommunications Interception Ordinance (Telekommunikations-Überwachungsverordnung) established the requirements for the collection of location data in the standby modus. According to this, the location data must meet the requirements of § 100g (1) StPO and be provided in real time. Considering the reality that location data can be easily collected due to the development of communication technology, it is essential to collect this location data in order to cope with serious crimes such as terrorism. Therefore, it is necessary to introduce a rule for collecting this location data. The capture of such data limits not the freedom of communication secrets, but the right to self-determination of personal information, so it must be prescribed in the Code of Criminal Procedure. Considering that such the location data is sensitive personal data, it should be limited to real-time collection and should not be stored. When the location data is collected for a long time as a monitoring means, the risk of creating a mobile profile is very high. Requirements similar to those for requesting communication confirmation data of PCSA are required. Therefore, this location data should only be collected for communication surveillance crimes and crimes by means of telecommunications. In addition, such data should be collected arising in the future or in real time if necessary to establish the facts or to determine the suspect's whereabouts. Procedural provisions for this can be considered by applying the relevant provisions of PCSA.