Seven proposed amendments to the Protection of Communications Secrets Act, modified by the legislation and judiciary committee, are pending before the National Assembly. The National Human Rights Commission of Korea (NHRCK) finds that they may violate people's freedom of communication and privacy and expressed the following opinion on them to the speaker of the National Assembly.
The Commission determined:
(i) Regarding addition of location information to the data confirming communication, GPS (Global Positioning System) information is inherently different from information tracking the location of a transmitting base station under the existing Act. The location of a person using a portable personal handset can be pinpointed within five meters for tracking purposes. In an era of ubiquitous computer technology in the future, most information will contain location information. If the existing Act is amended as proposed, it might expose all personal information, which is likely to lead to infringements upon personal privacy and abuse of such information by the investigative authorities. Accordingly, the Commission determined that the proposed provision should be deleted;
(ii) Concerning insertion of a provision setting forth an obligation to give notice of provision of communication-confirming data, the exemption of an investigative agency from said obligation when it gives a blanket notice to telecommunications service providers will likely undermine the effectiveness of the notification system. The Commission deems it desirable to maintain the existing provision;
(iii) With respect to punishment of a telecommunications service provider that refuses to comply with a request to provide communication-confirming data, there are no provisions in other laws that stipulate punishment of data holders for not 'providing cooperation' regarding a data provision request since an investigation agency may obtain evidence by search and seizure in ordinary investigations. However, said provision imposes a cooperation obligation on only a telecommunications service provider when an investigative agency requests provision of data. The provision also stipulates punishment against a service provider that fails to perform the obligation. This may be unconstitutional in that it may breach the principle of interest balancing, void for vagueness doctrine, and the doctrine of search with a warrant. In addition, it discriminates against telecommunication service providers without a rational reason. Thus, the NHRCK determined that said provision should be deleted;
(iv) Regarding the provision which sets forth an obligation to maintain equipment necessary for executing communication restriction measures, it institutionalizes eavesdropping on mobile phones, which has virtually been prohibited based on national consensus. This may create the belief that tapping can be virtually carried out at all times, not on an exceptional basis, and may seriously compromise individuals' privacy. In addition, the proposed amendments provide for possession of equipment necessary for eavesdropping, but contain insufficient provisions on the control of such equipment and do not stipulate an institutional mechanism and technologies to prevent leaks of information. This might create chronic risk of abuse by telecommunications service providers and violations of privacy. Accordingly, the Commission determined that said provision should be deleted; and
(v) Regarding the provision that obligates telecommunication service providers to keep communication-confirming data, the country is confronted with reckless collection and leakage of personal information, which necessitates institutional measures that require those service providers to immediately delete unnecessary personal information possessed by them. The provision setting forth their obligation to keep such data for a certain period of time is not in line with protection of personal information. The need to check communication records for a certain period of time for criminal investigation purposes is acknowledged. However, requiring telecommunication service providers to keep communication records of ordinary persons for up to one year for the purpose of resolving crimes which have not occurred yet, not even at the stage of preparing for crimes, is against the legislative purport of the Protection of Communications Secrets Act and highly likely to infringe upon human rights.
Unlike some foreign countries, the Republic of Korea lacks a stringent framework act protecting personal information as well as an independent and professional protection and supervision agency. Under these circumstances, there exists a high possibility that personal information may be leaked and abused for a long time. Requiring all telecommunications service providers to keep communication-confirming data without considering individual situations is likely to limit the freedom of business. The provision that forcefully imposes an obligation to keep such information must be deleted because it may infringe upon the general right to freedom of action as well as freedom of conscience.
The Commission determined that said provisions should be deleted or changed as described above since the proposed amendments to the Protection of Communications Secrets Act run counter to the legislative purport of the Protection of Communications Secrets Act. They risk widespread violations of the freedom of communication and privacy, infringements upon personal information, and breaches of the doctrine of search with a warrant.
The National Human Rights Commission of Korea was established in 2001, offering investigation and remedy services for Korean citizens and foreigners residing in Korea against human rights violations and discrimination. The Commission provides policy recommendations and remedial action against human rights infringements, collaborates with international human rights organizations and implements educational programs to improve the human rights culture.
