암호가 설정된 스마트폰의 환부 제도 개선

The best invention in the 21st century is by far a smartphone. With the advent of smartphones, people are practically doing everything through their smartphones, and as a result, all activities performed by people are recorded and stored on their smartphones. Furthermore, various electronic information stored in smartphones is semi-permanently stored unless it is intentionally deleted by smartphone users, and it is easily proven that it has been created and managed by smartphone users, so investigative agencies use searches and seizures of smartphones as a top priority for collecting evidence. As a result, those under investigation, including suspects, are attempting to neutralize the seizure and search of investigative agencies by setting dozens of digits of passwords, including special characters, on smartphones in order to prepare for investigations into smartphones, and this phenomenon is expected to increase gradually as investigation of smartphones expands. If a password is set on a smartphone as above, the investigative agency will consider asking the seized person to decrypt the password, decrypting the password through a third party such as a smartphone manufacturer, and decrypting the password using the forensic equipment it owns. However, not only is there no provision in the Criminal Procedure Act of Korea that compels the person from whom the warrant was seized to decrypt the password, but it is also difficult to prepare the basis provision due to the issue of infringement of the right to refuse self-incrimination or the right to refuse to make statements. Next, aside from whether it is technically possible to decrypt the password through the manufacturer, as long as foreign manufacturers such as Apple Inc. refuse to request the decryption of the password from the investigative agency, they cannot impose an obligation to decrypt only on domestic manufacturers. If such obligation is imposed on domestic manufacturers, consumers will use highly secure foreign manufacturers' products, which severely limits the goodwill of domestic companies. In the end, unless the party from whom the warrant was served cooperates, the investigation agency has no choice but to use its forensic device to decrypt the encryption. However, due to the limitations of the current forensic technology, decryption itself is impossible, or even if possible, it is likely to take decades or more. For the same reason, smartphones with passwords have not been used as evidence, and have been confiscated until the acquittal is confirmed. However, smartphones with passwords are subject to return after the indictment, at the latest, in light of the provisions of the Criminal Procedure Act that stipulate mandatory return, the Supreme Court's precedents that strictly interpret the need to continue seizure, strong restrictions on fundamental rights caused by searches and seizures of smartphones, and the fact that compulsory investigation after the indictment should be conducted by the court of the lawsuit. Therefore, in order for an investigative agency to continue to seize a smartphone until after the prosecution due to the possibility of decryption, it must obtain permission from the court of lawsuit. In other words, it is desirable for the court of the lawsuit to determine the need to continue the seizure even after the indictment is filed, and to extend the validity of the search and seizure warrant issued by the warrant judge, if necessary, in order to harmonize the investigation agency's efforts to discover the truth and the right to defend the person from whom the warrant was seized. I hope this study will help improve the system for returning smartphones with encrypted codes.