정보저장매체 압수·수색 시 참여권의 실질적 보장 방안에 관한 고찰 - 대법원 2024. 7. 25. 선고 2021도1181 판결 및 대법원 2024. 12. 24. 선고 2023도3626 판결에 대한 비판적 검토를 중심으로 -

In the digital age, the search and seizure of digital storage media, which can contain a person’s entire life, poses a significant risk of infringing upon constitutional rights such as privacy and the right to informational self-determination. Accordingly, the Supreme Court has strengthened constitutional control over the digital evidence collection process by recognizing the person with substantial control and disposition rights over the information as the ‘de facto subject of seizure’ and guaranteeing their right to participate. However, two recent Supreme Court decisions have reversed this trend, raising serious concerns. The decision that largely set aside the right to participate and the principle of relevance because the digital storage medium was ‘abandoned property’ (Supreme Court Decision 2021Do1181, delivered on July 25, 2024), and the decision that denied the original information owner’s right to participate because a third party submitted a ‘copy’ of the original information (Supreme Court Decision 2023Do3626, delivered on December 24, 2024), have resulted in a retreat from the legal principles established by the Supreme Court’s precedents. These decisions prioritize formal logic, such as the ‘absence of a submitter’ or the ‘separation of the medium from its owner.’ Specifically, the ‘Abandoned Property Decision’ negates the very existence of a rights-holder and dismisses the principle of relevance based on the formalistic reason that there is no submitter, thereby undermining the essence of the warrant principle and creating the risk of overly broad investigations akin to a general warrant. Furthermore, the ‘Copy Decision’ determines the right to participate based on the formal ownership of the ‘medium’ rather than the ‘information,’ which is the core subject of protection. This distorts the purpose of the ‘de facto subject of seizure’ doctrine and unfairly provides investigative agencies with a means to circumvent participation rights. The danger is amplified when the logic of these two decisions is combined. Investigative agencies can secure a systematic loophole to legally evade the information owner’s right to participate by selectively seizing digital storage media as ‘abandoned property’ or obtaining ‘copies’ from third parties, depending on the situation. This leads to a ‘hollowing out’ of the legal guarantees for the right to participate, which poses a serious threat by subverting the principle of due process and the warrant principle, and fundamentally restricting the defendant’s right to defense. To overcome these issues and substantially guarantee the right to participate, it is urgent to move beyond formal logic and seek interpretive solutions focused on substantive rights protection. First, the legality of a search and seizure must be determined based on the ‘person with substantial control and disposition rights over the information being searched,’ not the ‘medium’ or the ‘procedure.’ Second, instead of treating all digital storage media uniformly, the unique nature of ‘smartphones,’ which contain an individual’s entire persona, should be recognized, affording them enhanced procedural protections akin to a ‘cyber-residence.’ Third, in cases involving multiple parties, it is necessary to reasonably define the scope of participation, focusing on the ‘original owner of the information’ and the ‘final submitter’ who initiated the procedure. Ultimately, the core of the search and seizure process for digital evidence must be the ‘information’ it contains, not the physical ‘medium.’ To fill the judicial void created by these two recent decisions and to realize the protection of fundamental rights in the digital age, it is paramount for the judiciary to abandon its formalistic perspective and return to the spirit of substantive rights protection built up through its own precedents.