Amendment to Protection of Communication Secrets Act is needed to better protect personal information during investigation
-NHRCK recommended the Minister of Science, ICT and Future Planning
to revise the Protection of Communication Secrets Act-
o The NHRCK (Chairperson, Hyun, Byung-chul) made recommendations to the Minister of Science, ICT and Future Planning to amend related legislations in order to strengthen protection of personal information during the investigation process. The recommendations are as follows:
a) to include "communication data" such as name, address and resident registration number of users, which are defined under the Telecommunications Business Act (Article 83.3), in "telecommunication confirmation data" and to require court permission for access,
b) to strengthen requirements for access to the telecommunication confirmation data by adding two other requisites such as 'relevance to the crime' and 'relatedness of the required material to the case' on top of the 'need for investigation' which is the existing requirement for warrant,
c) to require investigative agencies to prove that the real-time location data is the only option available for investigation when requiring such data.
o The recommendations are attributable to the constantly raised concerns that the Protection of Communication Secrets Act is not fully protecting personal information while the exposure of personal information is increasingly leading to privacy infringement.
o Since 2008, the number of phone-number provided to investigative agencies has been increasing by 18% every year, reaching 8 million in 2012, which accounts for 16% of the total population. As such, personal information of telecommunication subscribers is provided to the investigative agencies without their knowledge.
o However, under the current telecommunication data provision system, investigative agencies can acquire personal information of telecommunication subscribers without their consent, and there exist no legal measures for regulation and no procedure for post-notification.
o In addition, the number of telecommunication confirmation data (phone number) provided to the investigative agency dramatically increased by a whopping 35 fold from 450,000 in 2008 to 16 million in 2009. After reaching 40 million in 2010, the figure is on a decrease, but every year about 20 million cases of personal information, half of the total population in Korea, are provided to investigative agencies.
o To have access to the telecommunication confirmation data, investigative agencies have to receive a court approval. However, the approval requirement, "the need for investigation or execution of a sentence", is vague to apply. That is why it draws much criticism that it is hard to prevent misuse of the law by the investigative agencies and not enough to protect privacy.
o Most of the telecommunication confirmation data provided since 2009 is related to base-station investigation. In 2009, more than 96% of the data provided were for base-station investigation, 98.3% in 2010 and 98.6% in 2011.
- Under the Current system with a newly-introduced investigative method of base-station investigation, investigative agencies can easily acquire personal information which is not related to crime, therefore make full use of the system.
o In addition, Article 2.11(f,g) of the Protection of Communication Secrets Act includes the 'data on tracing location' and the 'data on tracing location of connectors' in 'telecommunication confirmation data', which provide real-time location data of the person concerned, greatly infringing on human rights. However, the article allows investigative agencies to have an easy access to real-time location information if they can prove the need of information for investigation or execution of a sentence, just like other telecommunication confirmation data .
o In order to resolve such problems, the NHRCK decided to make recommendations, focusing on strengthening protection of personal information. It is believed that the provision of telecommunication data under Article 83.3 of Telecommunication Business Act and the provision of telecommunication confirmation data under Article 13 of Protection of Communication Secrets Act excessively violate personal privacy and freedom. In this regard, relevant legislative amendment is proposed to the National Assembly, civil groups demand for revision of the provision, and deliberations on unconstitutionality by the judiciary are under way.
o However, there was a minority opinion that requiring court approval for the provision of telecommunication data by applying the principle of warrant might delay investigation process and thus undermine State's duty to protect its people from crime and danger.
