디지털증거 압수·수색에서 독립분석기관 신설 방안

With the recent proliferation of large-capacity electronic information storage media such as smartphones and the advancement of digital forensic technology, investigative agencies increasingly face the problem of acquiring vast amounts of irrelevant information during the collection and analysis of digital evidence. This change can lead to privacy infringements by investigative agencies and abuse of separate investigations, potentially violating the principles of selective seizure and warrant requirements under criminal procedure law. Particularly, due to the invisibility and unreadability of digital evidence, investigative agencies are highly likely to infringe on fundamental rights during the relevance assessment process. Moreover, the commercialization of large-capacity storage media like smartphones includes extensive private information unrelated to crimes within digital evidence. The current system, where investigative agencies directly perform digital forensic analysis, has limitations in ensuring objectivity, fairness, and reliability of the analysis given the unique characteristics of digital evidence. This paper reviews the characteristics of digital evidence and the current analysis practices of investigative agencies, and argues the legitimacy and necessity of establishing independent analysis institutions by comparatively analyzing legislative cases from the United States' RCFL, the United Kingdom's FSS and FSR, Germany, and the Netherlands. Through the establishment of such independent analysis institutions, it is necessary to selectively provide only relevant information to investigative agencies during the digital evidence collection process to effectively protect citizens' fundamental rights and enhance the objectivity and reliability of digital evidence. Furthermore, as a concrete plan for establishing independent analysis institutions, this paper proposes reorganizing and utilizing the existing National Forensic Service, which possesses a certain degree of independence, expertise, and efficiency, to create a new National Forensic Institute that integrates digital forensic personnel and resources from various investigative agencies, establishing a nationwide analysis support system centered on the digital evidence analysis department. The establishment of this National Forensic Institute will contribute to effectively protecting citizens' fundamental rights by ensuring the independence, expertise, and efficiency of digital evidence analysis, and enhancing the reliability of scientific investigation and transparency of criminal justice procedures