온라인수색의 법률적 문제점과 허용가능성

As crime in cyberspace increases due to the development of information and communication technology, investigative agencies are developing new investigation techniques for efficient digital evidence collection. One of the new investigation techniques to deal with the changing crime environment is an Online Search that collects evidence of crime by invading the computer of the searched person in a technical way. In Korea, we found that there is no legal basis for the authority to allow Online Search, and there are problems such as prior notice and warrant presentation, guarantee of participation, and installation of spyware in order to apply the current criminal law. However, Online Search must be an effective investigation technique to counter crimes and terrorist crimes using the dark web, which are difficult to track. Therefore, in order to discuss the admissibility of Online Search, we reviewed the legislative process and contents of Germany, which had been discussed for a long time before introducing Online Search into the Criminal Procedure Law. In addition, in this paper, strict restrictions in extent of target crimes, warrants of principle, application of the principle of proportionality and complementarity, and post-control measures were presented as requirements for allowing Online Search in Korea. Online search is the most powerful means of infringement of basic rights, so further in-depth discussion is expected to continue.