전자정보 접근 방법의 법적 문제 - 진술거부권과 관계를 중심으로 -

Recently, issues of “access information” or “encryption information” such as IDs and passwords have emerged as important issues in the searches and seizures of electronic information. This paper reveals the normative nature of access information and encryption and discusses the criteria for determining the legality of investigative agency activities for its acquisition, especially focusing on the right to silence. First, I classified various methods for collecting data into (1) asking the ‘statement’ of access information, (2) requesting ‘actions’ such as entering access information, and (3) collecting ‘biometric information’ used as access information. Then, I reviewed the judging criteria for legality in relation to the right to silence. Access information and encryption should be protected by the right to silence. In addition, corresponding protection should be provided for ‘biometric information’ used as access information and ‘actions’ such as entering access information. It is possible to argue that attempts to recognize protection by the right to silence on access information and encryption will result in hindering the discovery of the truth. Our legal system does not impose encryption-related regulations on the private sector, but on the other hand, there is no legal basis to restrict the investigative agency’s attempts to decrypt unless they violate the criminal procedure law. This paper developed the discussion on the premise that the current legal system is balanced between the private interest of protecting privacy through encryption and the public interest achieved through investigation. In the future, serious discussions will be needed on the issue of appropriate levels of regulation on passwords and how they are assessed.