암호화된 스마트폰 압수·수색 규범의 법률화 필요성 = The Need for Legalization of Rules on Seizure and Search of Encrypted Smartphones

다국어 초록 (Multilingual Abstract)

The discovery of the substantive truth of a crime requires evidence. In the past, the confession of a suspect was considered the “king of evidence”. However, in modern criminal procedures that prioritize objective and scientific evidence, smartphones have taken over as the “king of evidence” due to their ability to contain various personal information such as photos, videos, voice recordings, location data, and messages. As a result, criminals employ various means to destroy their smartphones, while investigative agencies make efforts to prioritize securing the smartphones of suspects.
The advancement of technology and features in smartphones has made the legality of the seizure and search procedures for smartphones crucial. However, the criminal procedure law has not developed in parallel to accommodate the changing landscape of seizure and search of smartphones. Therefore, provisions regarding analog evidence, a few regulations related to digital evidence, and court judgments and decisions form the norms for the seizure and search of smartphones.
The current criminal procedure law lacks sufficient provisions regarding the seizure and search of smartphones and should be explicitly stated in the law in a timely manner. To address this, this paper examines the main regulatory contents by categorizing them into stages such as the issuance of warrants for the seizure and search of smartphones, execution of such warrants, selective seizure of smartphones, and analysis stages. Smartphones contain a significant amount of personal information. Therefore, excessive seizure and search of smartphones can infringe not only on the property rights of the person being seized but also on their personal information, privacy, and, in some cases, intellectual property rights. On the other hand, insufficient seizure and search can hinder the discovery of the substantive truth of a crime. Thus, regulations explicitly established in the law should comprehensively consider the characteristics of smartphones, the fundamental rights infringed upon the person being seized, and the discovery of the substantive truth. The seizure and search procedures for smartphones should not continue in their current defective form.
Basic contents that need to be regulated by law should be explicitly stated in the criminal procedure law. To achieve this, the legislative and justice departments need to make more proactive efforts in the legislative process.