역외 전자정보 수집의 범위와 한계 - 국가관할권의 획정과 위법수집증거배제법칙의 적용을 중심으로 -

The issue of law enforcement access to extraterritorial data is increasingly important because of the transnational nature of crime and network, and the development of encryption technology. Frustrated by delays in accessing data located across territorial borders, some nations are asserting that they can unilaterally compel Internet Service Providers that operate in their jurisdiction to produce the emails and other private communications that are stored in other nation’s jurisdictions, without regard to the location or nationality of the target. Others are considering mandatory data localization requirements. However, it is difficult to guarantee the effectiveness of individual countries’ efforts to secure extraterritorial data. That is, the vicious circle of regulation and avoidance can result in undesirable consequences in both political and economic terms while undermining public interests, such as national security and due law enforcement. Based on this awareness of the problem, this text reviews the problems associated with law enforcement access to data across borders such as the complicated jurisdictional, privacy, and security matters. In this article, I reviewed the scope and limitations of law enforcement access to extraterritorial data by separately considering the issue of international law and the problem of the exclusion of illegally obtained evidence. In the context of remote cyber operations, the violation sovereignty should be based on two different bases: (1) the degree of infringement of the target State’s territorial integrity and (2) whether there has been an interference with or usurpation of inherently governmental functions. When reviewing the contents of existing international norms and domestic laws of individual countries, it is likely that ‘access without authorization’ constitutes a violation of territorial sovereignty. Next, the issues of the rule of exclusion of illegally obtained evidence were reviewed. The right to participate should function as the key criteria for determining the admissibility of digital evidence because it is the core institution for protection of right of informational self-determination in the context of seizure and search of electronically stored information.