Case on Interception of Internet Cables

[2016Hun-Ma263, August 30, 2018]

In this case, the Court held that Article 5 Section 2 of the Protection of Communications Secrets Act which provides a legal basis for the so-called “packet interception,” the interception of telecommunications transmitted and received through Internet cables, infringes on the secrecy and freedom of communications and privacy of the complainant and thus is in violation of the Constitution.

Background of the Case

The director of the National Intelligence Service (“NIS”) executed the communication-restricting measures 35 times with respect to the telecommunications made by a person named OOO, including his mobile phone and internet cable, to investigate his alleged violation of the National Security Act pursuant to the permission granted by the court.

Among such measures were those executed six times from October 9, 2013, to April 28, 2015, with respect to the Internet cable purchased in the name of the complainant. Such six measures were the so-called “packet interception” through which state investigative agencies capture a “packet,” a unit of data split into small pieces in the form of electrical signals to transmit information through the Internet, and learn the content thereof.

The complainant filed this constitutional complaint, claiming that the permission for the communication-restricting measures granted by the court, the interception conducted by the director of NIS pursuant to such permission, and Article 5 Section 2 of the Protection of Communications Secrets Act had violated his or her fundamental rights, including the secrecy and freedom of communications and privacy, the warrant requirement governed by the Constitution, and the due process of law.

Subject Matter of Review

The subject matter of review in this case is whether 1) the permission granted by the court six times for the interception of telecommunications transmitted and received through the Internet cable purchased in the name of the complainant (the “Permission at Issue”), 2) the interception conducted by the director of the NIS from October 9, 2013, to April 28, 2015, pursuant to the Permission at Issue (the “Interception at Issue”), and 3) the part concerning “telecommunications transmitted and received through Internet cables” of Article 5 Section 2 of the Protection of Communication Secrets Act (the “Provision at Issue”) which provides a legal basis for the Permission at Issue and Interception at Issue, infringe on the fundamental rights.

Summary of the Decision

1. Regarding the Permission at Issue

The Permission at Issue amounts to authoritative legal judgment of the court on a matter that is collateral to, but distinct from, the procedure of trials arising under the Protection of Communications Secrets Act (the “Act at Issue”). Such legal judgment falls under the scope of the “judgment of the court” prescribed in Article 68 Section 1 of the Constitutional Court Act which is not subject to a constitutional complaint. Therefore, the complainant’s claim challenging the constitutionality of the Permission at Issue is non-justiciable.

2. Regarding the Interception at Issue

Since the Interception at Issue has already terminated, the protectable interest derived from subjective rights is extinguished, and since the Court will review the Provision at Issue in its judgment on the merits, the examination of the Interception at Issue is recognized as having no practical interest. Therefore, the complainant’s claim challenging the constitutionality of the Interception at Issue is non-justiciable.

3. Regarding the Provision at Issue

Interception of Internet cables is conducted through packet interception, through which data packets travelling over Internet cables are captured and reassembled and the content thereof becomes accessible. This form of interception thereby restricts the secrecy and freedom not only of communications but also of privacy.

Given the widespread use of Internet in our daily lives, there is a need to permit the interception of telecommunications made through the Internet for the prevention of crimes that endanger the national security, public safety, or the safety of property, life, and limb of all citizens; or for the investigation of crimes that have already occurred. Thus, the Court recognizes that the Provision at Issue serves a legitimate purpose and uses appropriate means.

Interception of Internet cables allows state investigative agencies to gain access to data pertaining to personal communications and the intimate realm of individual privacy. Therefore, legislative safeguards aimed at preventing the abuse of power and minimizing the interferences with the fundamental rights by state investigative agencies are required not only at the stage when the court grants permission for communication-restricting measures, but also at later stages, including during and after the execution thereof.

Article 5 of the Act at Issue stipulates that the communication-restricting measures shall be allowed only “when there is substantial reason to suspect that…crimes are being planned or committed or have been committed” and only as a last resort. In addition, Article 6 of the Act at Issue provides grounds for the court to determine whether to grant permission for the interception sought by examining whether the interception sought targets the Internet cable used by a specific suspect or person under investigation and whether the scope of the interception sought is limited to that which is necessary to investigate the crimes committed by the said persons.

However, when state investigative agencies conduct interception of an Internet cable, all the data travelling through that cable, including information concerning its users, are captured in the form of packets and transmitted intact to state investigative agencies. Through such packet interception, a wider range of data is collected by state investigative agencies than through other communication-restricting measures. Since the general public shares one Internet cable in most cases, the communications data concerning not only a suspect or a

person under investigation but also all the users of that cable are collected and retained by state investigative agencies during the execution of interception, which goes beyond the scope of the permission granted by the court.

Hence, supervisory or regulatory legal measures are strongly required to ascertain whether state investigative agencies have not collected or retained information relating to a third party or irrelevant to the criminal investigation during and after the execution of interception, and whether they have used and processed data in accordance with the original authorized purpose and scope of such acts. Nevertheless, the Act at Issue does not contain any provisions on the procedure for processing a vast amount of data collected through interception by state investigative agencies other than Article 11, which imposes a confidentiality obligation to any public official or former public official who has been engaged in the permission, execution, etc. in connection with the communication-restricting measures, and Article 12, which restricts the use of materials acquired through communication-restricting measures.

Under Article 9-2 of the Act at Issue, the prosecutor should notify a subscriber to telecommunications of the fact that the communication-restricting measures are executed but does not need to notify the subscriber of the grounds for the execution of such measures, and the subscriber is not even notified of the above fact in the case of prolonged investigation or when the prosecutor determines to suspend an indictment. Thus, the Act at Issue lacks a mechanism to regulate the said notification system after the communication-restricting measures are executed. Additionally, under Article 12 Item 1 of the Act at Issue, the contents of telecommunications acquired through wiretapping may be used to investigate, prosecute, and prevent crimes that are related to the crimes as to which the court authorized the execution of the communication-restricting measures. Therefore, the Court cannot exclude the possibility that state investigative agencies may abuse their power to collect information about a specific person, including his or her whereabouts.

There are a number of examples of legislation in other countries that allow state investigative agencies to intercept Internet cables or other similar communications for investigative purposes while setting out procedures that regulate the use of data acquired through such interception in order to minimize infringement on the fundamental rights, which includes the requirement for submission of periodic reports showing the progress of the interception to the court after an order authorizing interception is entered, the requirement for submission of the sealed data on the interception to the judge who issued an order authorizing such interception, and the judicial supervision of the preservation and destruction of the

data obtained through interception.

In light of the above, the Instant Provision does not satisfy the principle of the least restrictive means since it specifies the interception of Internet cables as one of the communication-restricting measures merely on the ground that such interception serves criminal investigative purposes, although no legal safeguards are in place to prevent the abuse of power and to minimize infringement on the fundamental rights by state investigative agencies during and after the execution of such interception.

Moreover, the balance between the public interest to be attained by the Instant Provision and the private interests to be infringed by the Instant Provision is considered not to have been struck, since authorizing the interception of Internet cables would pose a serious threat to the secrecy and freedom of communications and privacy of individuals.

Accordingly, the Instant Provision violates the principle of proportionality and thus infringes on the fundamental rights of the complainant.

4. Conclusion

Although the Instant Provision violates the Constitution by infringing on the fundamental rights of the complainant, the issuance of a decision of unconstitutionality would remove the legal grounds that allow state investigative agencies to carry out investigations through the interception of Internet cables, thus creating a legal vacuum in investigating grave crimes that need to be stopped urgently or endanger the life, limb, and property of citizens.

The unconstitutionality of the Instant Provision lies in the fact that a provision monitoring or regulating the use of data obtained through the interception of Internet cables does not exist despite the peculiar nature of such interception. Thus, it is at the discretion of the legislature to decide on the details of the amendment of the current legal framework governing such interception.

For these reasons, the Court issues a decision of nonconformity to the Constitution for the Instant Provision in lieu of a decision of unconstitutionality and orders temporary application of the Instant Provision until the legislature removes its unconstitutionality and makes reasonable amendments to the current legal

framework.

Summary of Dissenting Opinion of Two Justices

The communication-restricting measures for criminal investigations, which provide access to the content of communications, amount to direct interference with the secrecy of communications. Thus, the Act at Issue sets out stricter conditions for such measures than for access to “communication confirmation data” that contain non-content information related to communications, and also tightly regulates the use of wiretapping equipment by state investigative agencies.

According to Article 5 Section 1 of the Act at Issue, the communication-restricting measures may only be applied to crimes that gravely endanger the property, or life and limb of all citizens, such as insurrection and treason, and only when it is impractical to prevent the commission of such crimes, arrest the criminal, or collect the evidence relating to such crimes through measures other than the communication-restricting measures. In addition, as Article 5 Section 2 of the Act at Issue requires the court to decide whether to grant permission for the communication-restricting measures by examining the aforementioned substantive requirements for such permission, it is clear that the communication-restricting measures are under judicial control. Further, as the period of the execution of the communication-restricting measures has been limited to two-month in accordance with the Court’s previous decision in the case of 2009Hun-Ka30, the extension of such a period has become impossible unless the prosecutor files another application for the permission for the communication-restricting measures, indicating different reasons for such an application.

We do not see that there are no legal safeguards in place that regulate the abuse of power or serious infringement on the fundamental rights by state investigative agencies during the execution of the interception of Internet cables. The Act at Issue uniformly prohibits any public official or former public official of state investigative agencies who has been engaged with the interception of Internet cables from disclosing or divulging matters he or she has learned while conducting such interception, and imposes imprisonment of not more than ten years on the public official who has violated such obligation. It also prohibits the data obtained through interception from being used to investigate, prosecute, and prevent crimes when such data are irrelevant to criminal investigations. Further, under the Personal Information Protection Act, if special provisions do not exist in other laws or if

consent has not been obtained from a data subject, the state investigative agencies conducting interception are not allowed to preserve the information of a data subject obtained through such interception or to provide such information to a third party, and should destroy such information without delay.

Moreover, the interception of Internet cables does not essentially differ from that of other communications in transit, although there are relative differences in their mechanics and target.

For all the foregoing reasons, we find that the Provision at Issue satisfies the principle of the least restrictive means since the fact that there are no procedural safeguards in place to allow the court to supervise the execution of the interception of Internet cables does not necessarily constitute a failure of the Provision at Issue to comply with the said principle.

We also find that the Provision at Issue satisfies the principle of the balance of interests since the fact that a wider range of information is obtained through the interception of Internet cables than that of other communications, and a mere concern that state investigative agencies may not follow the measures provided by law, do not constitute a sufficient basis for the conclusion that the private interests to be infringed by the Instant Provision are dwarfed by the public interest to be attained by the Instant Provision.

Accordingly, the Provision at Issue does not violate the principle of proportionality and thus does not infringe on the secrecy and freedom of communications and privacy.

Summary of Dissenting Opinion of One Justice

Since the Provision at Issue merely prescribes one of the requirements for the permission for the communication-restricting measures, which is the object of such permission, the violation of the fundamental rights asserted by the complainant occurs only through the permission for the communication-restricting measures granted by the court and the execution of such measures pursuant to such permission. Therefore, the complainant’s claim challenging the constitutionality of the Provision at Issue is non-justiciable as it lacks the requirement of directness of the infringement of the fundamental rights.

* This translation is provisional and subject to revision.