Case on Location Tracing Data under Protection of Communications Secrets Act

[2012Hun-Ma191 · 550, 2014Hun-Ma357 (consolidated), June 28, 2018] * First Draft

In this case, the Constitutional Court held that 1) the provision under the Protection of Communications Secrets Act, which stipulates that an investigation agency may request location tracing data from telecommunications business entity when it is deemed necessary, violates the principle against excessive restriction, thus infringing upon information holders’ right to informational self-determination and freedom of communications; and, 2) the provision under the same Act requiring the investigation agency to notify that the location tracing data have been provided after the investigation, violates the principle of due process, therefore infringing upon information holders’ right to informational self-determination.

Background of the Case

(1) In the process of investigation and execution of arrest warrant against the complainants on charges of violating the Assembly and Demonstration Act, the investigation agency gained permission from the court to request a communications business entity to provide communication confirmation data of the complainants pursuant to Article 2 Item 11 Sub-Items (f) and (g) under the Protection of Communications Secrets Act, and received such information.

(2) Following the event, the complainants were notified by the investigation agency that such communication confirmation data had been provided.

(3) The complainants filed a constitutional complaint, claiming that the related provisions under the Protection of Communications Secrets Act infringe upon their 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 the part of Article 13 Section 1 under the Protection of Communications Secrets Act (amended by Act No. 7503 on May 26, 2005) concerning “any prosecutor or any 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 (f) and (g)” (hereinafter referred to as the ‘Requesting Provision’); and, the part of Article 13-3 Section 1 under the Protection of Communications Secrets Act (amended by Act No. 7503 on May 26, 2005) concerning communication confirmation data of Article 2, Item 11 Sub-items (f) and (g) (hereinafter referred to as the ‘Notifying Provision’) infringe upon the basic rights of the complainants. The Instant Provision reads as follows:

Provision at Issue

Protection of Communications Secrets Act (amended by Act No. 7371 on January 27, 2005)

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

11. The term "communication confirmation data" means the data on the records of telecommunications falling under any one of the following:

(f) The data on tracing a location of information communications apparatus connecting to the information communications networks;

(g) The data on tracing a location of connectors capable of confirming the location of information communications apparatus to be used by the users of computer communications or Internet for connecting with the information communications networks;

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").

Article 13-3 (Notification of Provision of Communication Confirmation Data for Criminal Investigations)

(1) When any public action is instituted against the cases receiving the provision of communication confirmation data under the provisions of Article 13, or a disposition of not instituting any public action or booking (excluding a decision on suspension of prosecution) is taken, a written notice of the fact that communication confirmation data is provided, the agency requesting the provision and the relevant period, etc. shall be made within 30 days from the date the said dispositions are taken.

Summary of the Decision

1. Regarding the Requesting Provision

In a bid to assure investigation activities, the Requesting Provision allows an investigation agency to request a telecommunications business entity to provide the location tracing data of a telecommunication service subscriber, the information holder, with the court’s permission, when it is deemed necessary to conduct criminal investigation. Therefore, legitimacy of its legislative purpose and appropriateness of the means can be acknowledged. However, 1) as the investigation agency may have access to the information holders’ whereabouts and movements at a certain period of time by acquiring the location tracing data, such information is sensitive information warranting sufficient security; 2) the Requesting Provision unreasonably restricts the basic rights of the information holders by allowing the investigation agency to ask for such wide range of location tracing data; 3) there are less intrusive measures of requesting the location tracing data that do not interfere with investigation activities while less infringing upon the basic rights of the information holders such as adding the requirement of exhaustion of prior remedies for real-time location tracking or location tracking on the general public, or applying such requirement differently depending on the gravity of crimes concerned; and, 4) the investigation agency is required to obtain permission from the court before requesting the location tracing data, but as the only requirement of the request is the “necessity of investigation”, procedural control cannot properly function.

Considering all these aspects, minimum restriction and balance of interests in the Requesting Provision cannot be met. Hence, the Requesting Provision violates the principle against excessive restriction, and it infringes upon the information holders’ right to informational self-determination and freedom of communications.

2. Regarding the Notifying Provision

The confidentiality of an investigation needs to be guaranteed, however, the information holders must be properly notified of the provision of location tracing data as well as given an actual opportunity to make a practical statement to prevent the investigation agency from abusing its power through the principle of due process prescribed in the Constitution, and to protect the basic rights of the information holder. However, the Notifying Provision fails to state any obligation to notify the information holders that the location tracing data have been provided in case when the investigation is protracted or suspension of prosecution is decided. In addition to this, even when there is notification of such provision, the exact reason for such provision of data is not provided. Furthermore, the Notifying Provision does not assure whether the data concerned were duly discarded after the investigation purpose has been served. Therefore, it is impossible for the information holders to properly respond to investigation agency’s abuse of authority regarding the location tracing data. These matters can possibly be addressed by the following measures: obliging the investigation agency in principle to notify the information holders that the data have been provided after a lapse of a certain period even when the investigation is prolonged or prosecution is suspended, and such notification can only be suspended with permission of a neutral agency when it is deemed to interrupt the investigation; allowing the information holders to request formal notice on what ground the data have been provided under certain conditions; and imposing sanctions on the investigation agency that violates the notification obligation. All of these aspects are considered, the Notifying Provision violates upon the complainants’ right to informational self-determination by disregarding the principle of due process prescribed in the Constitution.

3. Order for provisional application following a decision of nonconformity

The Requesting Provision and Notifying Provision are unconstitutional as they infringe upon the basic rights of the complainants. However, if they are declared unconstitutional immediately, a legal vacuum would occur upon the removal of legal grounds that allow the investigation agency to request the location tracing data or require it to notify that

the data have been provided. It is at the discretion of the legislators in principle to remove the unconstitutional elements by taking into account specific criteria and conditions. Therefore, the Court delivers a decision of nonconformity to the Constitution regarding the Requesting Provision and Notifying Provision but orders their continued application until proper amendment is made by March 31, 2020.

Dissenting Opinion of Three Justices

1. Regarding the Requesting Provision

The Requesting Provision does not violate the principle against excessive restriction, and it does not infringe upon the complainants’ 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, the location data are used to track suspects or locate their whereabouts; 2) the investigation agency should be able to request the communication confirmation data of all criminal suspects and etc. to solve crimes quickly and to prevent crimes; 3) the communication confirmation data such as location data do not seriously restrict the basic rights as such data do not contain substantial information; 4) it is ambiguous to distinguish the crimes that absolutely need the requirement of exhaustion of prior remedies from those which do not, and enforcing such requirement would make it difficult to identify the whereabouts or movements of suspects, subsequently leading to delayed investigation and additional crimes; and 5) pursuant to related provisions, the investigation agency shall obtain court permission to be able to request the communication confirmation data by presenting a written document that includes grounds for the request, relevance with the information holder(s), and the scope of information needed.

2. Regarding the Notifying Provision

Allowing the investigation agency to request for communication confirmation data is aimed to assure its investigation activities, which requires confidentiality. However, if the information holders are notified during the investigation that their communication confirmation data have been provided, the Court cannot root out the possibility that suspects and individuals related with the suspects stop using their mobile or Internet and

flee, or destroy evidence, which can disrupt the investigation or make it difficult to deal with additional crimes. On the other hand, even if such notification is made after prosecution or non-prosecution, the information holders’ private interest restricted by the notification is deemed insignificant given that the communication confirmation data are not substantial. Meanwhile, when the information holders are criminal suspects, they will be notified of the fact that their communication confirmation data have been provided by the service of indictment or non-prosecution disposition. Whereas, when the information holders are not criminal suspects, it may be desirable not to inform them of the reason for requesting the communication confirmation data in order to protect the honor and privacy or the suspects. Moreover, the information holders can resort to post-remedial procedures such as denying evidence admissibility of the communication confirmation data obtained in violation of the Requesting Provision and Notifying Provision according to the exclusionary rule of criminal procedure or claiming damages against a responsible investigator or the State. As such, it is hard to find that the Notifying Provision, which specifies that the investigation agency shall notify the provision of communication confirmation data after the investigation, while not disclosing the reason for such provision, violates the principle of due process.

*This translation is provisional and subject to revision.