Chohee Bae, Jiwoo Lee, KyungLyul Lee, Journal of Internet Computing and Services, Vol. 24, No. 3, pp. 79-88, Jun. 2023
10.7472/jksii.2023.24.3.79, Full Text:
Keywords: communication data, privacy in internet, self-determination of personal information, improved legislative measures, geo-fencing technology, warrant of digital evidence

Abstract

Through the ex post facto restraints, the Constitutional Court ruled that the investigative agency's right to request communication data stipulated in the TBA §83 violates the right to self-determination of personal information and the due process. As legislators must revise related laws to conform to the Constitutional Court ruling by 2023.12.31, it is urgent to prepare legislative measures that meets the PCSA § 13, the TBA § 83, and the PIPA §18. On the other hand, the U.S. is implementing revere-location search warrant based on geo-fencing technology, a technology that sets a virtual boundary and provides a service to record or reprocess the location based on recorded information. It caused legal problems, such as collecting a large amount of location information kept by ISPs or platform companies, and indiscriminately collecting information of unrelated individuals. Accordingly, New York has proposed a revised Criminal Procedure Act to limit the indiscriminate collection of personal information. The problem of extensive search and seizure of digital data can also arise from trans-border access to cloud servers. The way to decide the place is different between GPS and the base station method. Also, the accuracy is low at the base station. According tothe current rule of the warrant, the investigative agency can only use the base stations' information for investigation. Also, they must specify the subject of the search and seizure and cannot collect unrelated information. Through a comparative analysis of the problem of widely collecting and tracking individual location information with geo-fencing technology in the U.S., this study aims to prepare improved legislative measures that put the brakes on the current investigation practice of indiscriminately collecting telecommunication data. According to the law, a warrant cannot be issued unless the suspect can be identified; however, preliminary information should be gathered for the investigation to identify the culprit. This study therefore proposes the retention of a warrant system that was supervised by prior judicial institutions while introducing warrants for information gathering at a level that is laxer than the current one. By proposing the modification of search and seizure warrants for digital evidence, this study expects to enhance the effectiveness of forced investigations that meet due process and the right to self-determination of personal information.

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