Case on Investigation Using Base Station under Protection of Communications Secrets Act

[2012Hun-Ma538, June 28, 2018] * First Draft

In this case, the Constitutional Court held that the provisions under the Protection of Communications Secrets Act, which allow using base stations for investigation when deemed necessary, violate the principle against excessive restriction and, therefore, infringe upon information holders’ right to informational self-determination and freedom of communications.

Background of the Case

(1) An unknown person was suspected to have given out money and valuables to party members during the primary to elect the leader of the Democratic United Party held at the Seoul Educational Culture Center on December 26, 2011. The investigation agency, upon commencing the investigation, monitored footage from CCTV installed near the area, and based on the time of telephone call made by the unknown person using a mobile phone and by obtaining a court’s permission at 18:10 on January 25, 2012, requested telecommunications service carriers to provide the following communication confirmation data using base stations covering the Seoul Educational Culture Center: incoming and outgoing phone numbers, the time of incoming and outgoing calls made, and duration of the conversations between 17:00 and 17:10 on December 26, 2011. The agency received the communication confirmation data of 659 people in total including the complainant.

(2) The complainant, a journalist, was covering the primary at the Seoul Educational Culture Center at the time of the incident, and was notified by the investigation agency on March 20, 2012 that his communication data had been collected by the agency.

(3) The complainant filed a constitutional complaint on June 14, 2012, claiming that Article 13 Section 1 and 2 of the Protection of Communications Secrets Act, which provided the legal ground of the above investigation, infringe upon the basic rights such as freedom of communications, privacy rights, and the right to informational self-determination.

Subject Matter of Review

The subject matter of review in this case is whether 1) the part of Article 13 Section 1 under the Protection of Communications Secrets Act (amended by Act No. 7503 on May 26, 2005) concerning “[A]ny prosecutor or judicial police officer may, when he/she deems it necessary to conduct any investigation or to execute any punishment, ask any telecommunications business entity under the Telecommunications Business Act for the perusal or the provision of the communication confirmation data according to Article 2 Item 11 Sub-items (a) through (d)” (hereinafter referred to as the “Request Provision”) and, 2) the part of Article 13 Section 2 under the Protection of Communications Secrets Act (amended by Act No. 7503 on May 26, 2005) concerning communication confirmation data under Article 2 Item 11 Sub-items (a) through (d) (hereinafter referred to as the “Permission Provision”) infringe upon the basic rights of the complainant. The provisions at issue read as follows.

Provision at Issue

Protection of Communications Secrets Act (amended by Act No. 7503 on May 26, 2005)

Article 13 (Procedures for Provision of Communication Confirmation Data for Criminal Investigation)

(1) Any prosecutor or judicial police officer may, when he/she deems it necessary to conduct any investigation or to execute any punishment, ask any telecommunications business entity under the Telecommunications Business Act (hereinafter referred to as “telecommunications business entity”) for the perusal or the provision of the communication confirmation data (hereinafter referred to as “provision of the communication confirmation data”).

(2) Any prosecutor or judicial police officer shall, when he/she asks for the provision of the communication confirmation data under paragraph (1), obtain permission therefor from the competent district court (including any ordinary military court; hereinafter the same shall apply) or branch court with a document in which the reason for such asking, the relation with the relevant subscriber, and the scope of necessary data are entered: Provided, That if the urgent grounds exist that make it impossible to obtain permission from the competent district court or branch court, he/she shall obtain permission immediately after asking for the provision of the communication confirmation

data and then send it to a telecommunications business entity.

Summary of the Decision

1. The Request Provision

The Request Provision of this case, in a bid to assure investigation activities, allows an investigation agency, by obtaining a court’s permission, to request a telecommunications business entity to provide communication confirmation data of the concerned subscriber when it is deemed necessary to conduct criminal investigation. Therefore, its legislative purpose is legitimate, and the appropriateness of means is satisfied. However, 1) the communication confirmation data inevitably originated by use of mobile communication services, although not containing substantive information in and of itself, is still sensitive information, as knowledge regarding the information holder may be inferred from a combination or analysis of the data and other information; 2) while the investigation agency is required to obtain a court’s permission before requesting the communication confirmation data, as the only requirement for the permission is “necessary for investigation,” it is indeed difficult to limit the use of such request; and, 3) less restrictive measures infringing upon the basic rights of the general public to a lesser degree that do not interfere with investigation activities are available, i.e., limiting the scope of investigation using base stations to crimes such as kidnapping, abduction and sex violence and crimes amounting to threats to national security that absolutely require the communication confirmation data of suspects or victims, or adding the requirement of exhaustion of prior remedies when there are no other feasible means of investigation. As such, the Request Provision does not satisfy the rule of minimum restriction and balance of interests test. Hence, the Request Provision violates the principle against excessive restriction and infringes upon the complainant’s right to informational self-determination and freedom of communications.

2. The Permission Provision

As investigation using base stations amounts to a compulsory disposition set forth in the Protection of Communications Secrets Act, the constitutional principle of arrest by warrant applie. The principle, in nature, requires a specific determination by an independent judge in ordering a compulsory disposition. The Permission Provision stipulates that the investigation agency must obtain an order from the competent district court or branch to request any telecommunications business entity to provide the

communication confirmation data. Therefore, the Permission Provision does not violate the principle of arrest by warrant and does not infringe upon the complainant’s right to informational self-determination and freedom of communications.

3. Order for continued application following a decision of nonconformity

The Request Provision of this case is unconstitutional as it infringes upon the basic rights of the complainant. If they are declared unconstitutional immediately, however, a legal vacuum would occur in criminal investigations and victims’ relief upon removal of the legal ground that allows the investigation agency to request the communication confirmation data of suspects and/or victims. Besides, how unconstitutional elements of the Request Provision should be removed and which specific criteria and conditions would be adopted in that process must be left at the discretion of the legislators in principle. Therefore, the Court delivers a decision of nonconformity to the Constitution regarding the Request Provision and orders its continued application until an amendment is made by March 31, 2020.

Dissenting Opinion of Three Justices

The Request Provision does not violate the principle against excessive restriction and does not infringe upon the complainant’s right to informational self-determination and freedom of communications considering the following reasons: 1) given the characteristics of communication confirmation data used at the early stage of an investigation, investigation using base stations is only used for purpose of locating a suspect; 2) it is considered necessary that the investigation agency should be allowed to request the communication confirmation data of the general public who happened to be present within the coverage of certain base stations at a certain time in order to prevent crimes and expedite resolution of crimes; 3) the data obtained from base stations are not substantial, thus collection of such data does not seriously restrict the basic rights; 4) limiting the scope of investigation using base stations to certain crimes or adding the requirement of exhaustion of prior remedies, as the majority opinion reads, would make investigation activities difficult and subsequently lead to additional crimes that can put people in danger; and, 5) under the relevant provisions, the investigation agency is required to submit a written document setting forth reason for request, relevance with the subscriber and the scope of information needed to obtain a court’s permission to

request the communication confirmation data, suggesting that investigation using base stations is allowed for the minimum scope necessary.

*This translation is provisional and subject to revision.