전기통신사업법 제83조 제3항에 따른 통신자료 취득행위의 허용 범위: 2022년 7월 21일 2016헌마388 등 병합사건에 대한 헌법재판소의 결정을 분석하며

According to the Telecommunications Business Act, a court, a prosecutor, the head of an investigative agency, or the head of an intelligence and investigation agency etc. (hereinafter referred to as “investigation agency etc.”) may acquire the communications data - namely, names of users, resident registration numbers of users, addresses of users, phone numbers of users, user ID, dates on which users subscribe or terminate their subscriptions - from a telecommunications business operator. The communication data acquisition by investigative agency etc. is possible for trial, investigation, execution of punishment, or collection of information for the prevention of harm to national security. There are some debates on the violation of fundamental rights, because the communication data is acquired without a warrant or consent of the information subject. Under these circumstances, it is noteworthy that the Constitutional Court decided on July 21, 2022 in South Korea that the acquisition of communication data by investigative agency etc. based on Article 83(3) of the Telecommunications Business Act does not in itself violate the Constitution. This article critically analyzes the recent decision of the Constitutional Court, focusing on the protection of fundamental rights, including the right to self-determination of personal information of information subjects. In detail, this article reviews the subject and scope of the communication data acquisition and the characteristics of the communication data acquisition act, and argues that there is a need for control over the communication data acquisition by investigative agency etc. under Article 83(3) of the Telecommunications Business Act. In conclusion, this article suggests legislative mechanisms to more clearly set the permissible scope of communication data acquisition by investigation agency etc.