최신 디지털 증거 관련 판례 분석(3) - ‘수색(특히 검색어)의 제한’, ‘임의제출, 유류물 압수의 한계 설정’, ‘전자증거의 존재 형식과 압수대상’을 중심으로

In the case of electronic information seizure and search, the courts are going one step further from their existing position and are moving in the direction of restricting separate investigations and personal information searches and seizures. It seems that they are continuing to restrict the previously permitted categories. The case law introduced this time also reflects such a tendency. In this issue, we will examine recent Supreme Court case law trends on <limits on searches (especially search terms), arbitrary submission, limits on seizure of remains, forms of existence of electronic evidence and targets of seizure>. In a case where the court issued an unusual warrant to restrict a search by directly specifying keywords (Supreme Court Decision 2021do2485, delivered on October 14, 2021), the court ruled that the evidence was illegally collected when the prosecutor modified the keywords through a title-based search, indicating that the prosecutor intentionally violated the restriction on issuing a warrant. The court ruled that this was not a minor procedural violation, and that acknowledging the evidentiary value of secondary evidence, which is by no means less than that of the primary evidence, could lead investigative agencies to mistakenly think, “Even if we collect primary evidence in violation of the requirements of a warrant issued by a judge, secondary evidence collected on the basis of this may later be recognized as admissible, so let’s just execute the warrant as is”. Considering these factors, it is difficult to view this as an exceptional case in which excluding the evidentiary value of secondary evidence runs counter to the intent of seeking harmony between the principle of due process and the ascertainment of substantive truth, thereby realizing criminal justice. The court’s judgment is formally acceptable, but when you look at the details of the case, you can have considerable questions. Restricting the search method could seriously damage the investigative agency's ability to discover electronic evidence. In the United States, the forensic process requires a lot of intuition and on-site judgment, so if you limit the search scope by keyword, for example, you will not be able to find many types of files that fall within the scope of the warrant. There are file types that cannot be filtered by keyword, and since it is impossible to know which words the people involved in the case used to indicate the crime, limiting the search scope by keyword, etc. without analyzing each and every one of them, could hinder the discovery of the truth. On the one hand, the court is judging from different perspectives the voluntary submission of electronic information and the electronic information seized from the remains. That is, in the case of voluntary submission, the intention of the voluntary submitter should be interpreted restrictively and the right to participation of the seized person, including the actual seized person, should be guaranteed (Supreme Court Decision 2020do14654, July 29, 2021). However, in the case of seizure of relics, it was made clear that the subject or scope of seizure is limited in relation to the criminal facts, and the participation of the person with the right to participate is not essential. In particular, in the case of relics, it was judged that the person with the right to participate as the subject of seizure cannot be recognized due to the nature of the relics themselves (Supreme Court Decision 2021do1181, July 25, 2024). In addition, the court ruled that the investigative agency legally seized a PC corresponding to the second type, and that the files found on the PC should be considered legal, but since the ‘contents’ of the files are identical to the emails that denied the search and seizure, and should be viewed as dependent on them while being automatically saved, this is illegal. There are also no clear standards for the identity of the contents and auxiliary functions. It seems to be a puzzling judgment that goes against the rule of thumb (Supreme Court Decision 2019Mo3112, pronounced on October 21, 2022). Separately, in a case where there was no separate warrant request for email (Supreme Court Decision 2018do13073, November 29, 2018), Outlook emails stored on a tablet PC were acknowledged as evidence. It can be said that a clearer legal interpretation of the ‘items to be seized’ of electronic information is more required.