현행 통신비밀 보호법제의 헌법적 문제점

초록

With the issues on messenger censorship by the prosecutor’s office on September and October in 2014, challenges are emerging whether the current communications secret protection systems and the criminal justice procedures including communications search and seizure, wiretapping, etc. are proper systems according with a digital era. In a constitutional legal perspective, this issue is whether or how to realize and enhance communications secret protection as a constitutional principle or thesis in Internet services. This study aims to analyze the constitutional problems of the current communications secret protection systems on the assumption that constitutional principle of communications secret protection as a constitutional right must be realized and enhanced thoroughly in Internet services and the current communications secret protection systems must be designed and enforced more constitutionally. Particularly, the constitutional problems of the current communications secret protection systems are as follows. First, the current wiretapping system, provision system of communication confirmation data for criminal investigation, provision system of communications data for criminal investigation violate the warrant system as a basic constitutional principle in the criminal justice system. Second, the current wiretapping system, provision system of communication confirmation data for criminal investigation, provision system of communications data for criminal investigation violate the due process of law as a constitutional principle in the criminal justice system. Third, the current wiretapping system, provision system of communication confirmation data for criminal investigation, provision system of communications data for criminal investigation violate the principle of proportion as a constitutional principle in the criminal justice system. Especially the provision system of communications data for criminal investigation infringes upon the right to self-determination on personal data.

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