인터넷서비스제공자를 통해서 본 제3자 보유정보에 대한 영장주의의 실효성 = Effectiveness of Prior Warrant Preference Doctrine against Third Parties in the Constitution : Case of Internet Service Provider

다국어 초록 (Multilingual Abstract)

Information age is all the rage and asking the information to the third parties from government is also up to the roof. Asking the information to the third parties adopts too numerous forms and compulsory methods to reduce in a line. In Korea, Courts has interpreted the prior warrant preference doctrine in the Constitution narrowly, applying only to law enforcement compulsory investigation process. However, even if the current protection of prior warrant is enlarged, the actual effects is very dubious. Korean Courts maintain the classic prior warrant preference doctrine based on property-centered whether it is involved with expectation of privacy, while the U.S. Courts only protect expectation of privacy through 4th Amendment. At appearance, this protection seems broader than U.S. counterparts in relation with third parties withholding information. In real, the prior warrant preference doctrine fails in providing effective protection, because it focuses on prevention of forced confession through detention. Actually, the Protection of Communication Privacy Act provides broad prior warrant process against search and seizure of Internet Service Provider withholding informations while U.S. only protects person to person message less than 180 days through warrants. However, the protection of Courts against the most invasive search and seizure warrant in Korea fall shorts of expectations, compared U.S. Courts in Google case. The reason behind this failure is low threshold issuing search and seizure warrants and absence of suppression remedies.