디지털 시대 미국 수정 헌법 제4조 수색의 적법성 심사 기준에 관한 연구 -Carpenter 사건 및 후속 판례 동향 분석을 중심으로-

Acquisition of digital data is very efficient for the police to investigate a crime, but it raises serious privacy concerns. Thus, such investigative practices need to be appropriately controlled. The privacy concerns regarding such digital investigations stem from the characteristics of digital data. The traditional test for Fourth Amendment protection presupposed physical invasion. As a result, the trespass theory and the reasonable expectation of privacy test have become the dominant standards for Fourth Amendment protection. However, with the advent of the digital era, a new Fourth Amendment protection standard needs to be adapted, focusing on the characteristics of digital data. In Korea, research has been conducted on the traditional Fourth Amendment standards, but research on the new test for digital data is lacking. This paper was written to analyze and introduce Carpenter v. United States and to argue that the new digital data characteristics-based Fourth Amendment protection test should replace the traditional standards, at least with regard to digital investigation. As the reasonable expectation of privacy is a very vague standard for a privacy protection test, especially when it comes to digital data, the key factors in determining "search" within the meaning of the Fourth Amendment must be the characteristics of the digital data obtained by the government. In the digital age, the court's role in protecting privacy should not be to grasp the privacy approved by society as descriptive but to determine the privacy that society should approve as normative. In other words, the characteristics of digital data, as normatively determined by the court in relation to privacy invasion, should control "search" within the meaning of the Fourth Amendment. These characteristics can be categorized as "the revealing nature of information," "amount of information," and "automatic nature of information collection.