코로나 팬데믹 시대에 비추어 본 스마트 국가의 역할과 기본권

The modern smart society based on IoT and Big Data can be evaluated as a society in which an individual’s comprehensive activities are transmitted and received through a telecommunication company in the form of packets, which are digital data. As seen in the response to the corona pandemic, a National Power that can check all communication details of an individual based on relevant laws and ordinances has a dysfunction to invade personal privacy beyond the scope of its purpose while performing a net function to ensure the safety of the people. In particular, ‘Y.2770’ as the norm of the International Telecommunication Union, which allows packet inspection for all communications that members of a smart society actively or passively transmit and receive, and the related 「Communication Confidentiality Protection Act」 further increase the possibility of infringement of individuals’ right to self-determination of information, privacy and confidentiality of communication by the state. In this respect, legislation of the restriction of basic rights of the people as an obligation for the purpose of protecting the people in a smart society should place more emphasis on democratic legitimacy on the premise of the people as sovereign rather than on the premise of the people as subject to governance. In order to realize the aforementioned, first, anyone subject to packet inspection must be legally guaranteed the right to be notified. Next, the telecommunications companies that are considered to be participants in the packet inspection process are obligated to notify the parties of the packet inspection separately from the national agency that has performed the packet inspection, and the telecommunications company’s websites or terms and conditions should be notified in advance that packet inspections may be conducted by state agencies for the purpose of protecting the public.