파일 열람 행위에 의한 영장집행의 문제점과 디지털 저장매체 수색압수구조의 개선방안

Without the digital technology, only a little part of my secret would have been recorded on a paper and hidden in desk drawer. However, now everything is kept in digital devices and it is appalling to even imagine that someone snoops through my smartphone. Even if not a great deal of secret is in it, the device is very personal space that photos of me and my family, random thoughts and ideas, and vague future plans that might sound absurd to others are located. For this reason, the widely promulgated view is that there is a stark difference between confiscating one piece of paper and a digital device that contains thousands or hundreds of millions of copies. The principle of printout and copy set forth in Article 106 section 3 of the Criminal Procedure Act is what has been introduced to limit the scope of seizure of digital device, which is deemed as an aggregated body of privacy, and its purpose is reasonable. However, we need to contemplate whether this principle is sufficient as a way not to infringe on privacy that the owner of the confiscated device expects to be protected. If the investigating agency is allowed to go through the whole 1TB storage data to search for what is only a single page data, the principle of printout and copy alone cannot function as a measure to minimize privacy breaches, as his privacy is no longer deemed protected, unless the scope of the search is limited. Before setting the scope of the seizure, we should first find ways to reduce the scope of search. By minimizing the search scope, including specifying the method and duration at the time of issuing a search warrant, defining the search scope by implementing data preservation measures when it is not specified, utilizing automatic technology, and keeping a record of perusing.