The Constitutional Court blows away the opportunity to define the privacy protection area of ​​telecommunication service providers

Under the current Telecommunications Business Act, investigative agencies may request communication data of subscribers from telecommunication companies without a court warrant. It is said that there is no enforcement, but in reality, it is not easy for a telecommunication company to ignore the request for data provision from an investigative agency. Moreover, the fact is not even notified to the person concerned. It is a structure that makes it difficult to know how many people’s communication data have been passed on to the investigative agency in the dark.?

NGOs filed a constitutional complaint against this system, and the Constitutional Court made a partial decision to dismiss it as inconsistent with the Constitution on July 21st? The decision to be unconstitutional is a natural conclusion.

However, the fact that this system itself is not subject to the application of a warrant under the Constitution and that it does not violate the principle of clarity or excessive prohibition is very concerned about the insufficient recognition of the basic right of ‘personal information protection’. Professor Park Kyung-shin of Korea University Law School criticized the decision of the Constitutional Court.[기자말]

On July 21, the Constitutional Court ruled that the investigation agency could directly request and receive personal information of users (user information such as user name, resident registration number, address, registration and cancellation date, phone number, ID, etc.) A decision was made to be inconsistent with the Constitution for the ‘Provision of Communication Data’ system (Article 83 (3) of the Telecommunications Business Act) (Decision of the Constitutional Court on July 21, 2022, decision 2016Hunma388, etc.).

In this decision, the Constitutional Court said in this decision that, although notification of the fact that the party’s basic rights are restricted is very important in that it is a prerequisite for the parties to confirm the fact that the basic rights are restricted and dispute whether or not it is justified, the system is It was judged that the lack of a notification procedure violates the principle of due process and infringes the right to self-determination of personal information. However, he said that the acquisition of communication data by investigative agencies by the system is not compulsory and therefore does not require a warrant.

The protection scope of privacy has a tautological aspect. It is for the same reason that the US Supreme Court had no choice but to ambiguously define the scope of privacy protection for investigative agencies as ‘reasonable expectation of privacy’. In other words, the area of ​​privacy protection is determined according to existing laws and practices.

For example, the name of the real estate owner is required to be disclosed through the real estate register, and with this system in place, no matter who currently knows the owner of a specific real estate, it is not recognized as an invasion of privacy of the owner. So, how about finding out who owns a specific phone number? We have the practice of disclosing someone’s cell phone number without their consent as an invasion of privacy. How strong of a practice would the song “I don’t need your first and last name, but I really want one thing. Your phone number” would be a hit?

Of course, knowing the mobile phone number and knowing who the owner is can be a slightly different matter, and that is the provision of communication data. Article 83 (3) of the Telecommunications Business Act permits a telecommunications business operator to notify the owner of a mobile phone number upon request from an investigation agency in accordance with the need for investigation.

The title of Article 83 of the Act is “Protection of Communications Secrets”, which is a corporation established by telecommunication business operators to protect users’ privacy. thing is excluded.

If so, should it be considered constitutional for the investigation agency to acquire the identity information of cell phone number holders from telecommunication operators as the scope of privacy protection has been confirmed by this law? Or should it be regarded as unconstitutional by excessively narrowing the scope of protection of other people’s privacy, contrary to the current established practice of thinking of this other person’s cell phone number as privacy? The Constitutional Court should have answered this very question, but missed that opportunity in the decision above.

The Constitutional Court ruled as follows on the claim that the provision of this Act was unconstitutional by allowing confidential information to be obtained without a warrant.

 

The provision of this case only stipulates that the telecommunications business operator may comply with the request while granting the authority to request the provision of communication data from the telecommunications business operator. It does not impose an obligation to respond to or cooperate with a request for provision of communication data, etc.

Therefore, the request for the provision of communication data pursuant to the provisions of this case is a voluntary investigation without coercive force, and the warrant principle does not apply to the acquisition of communication data by investigative agencies, etc. does not violate

However, the provision of user information by telecommunication service providers is a voluntary act unless the request and acquisition of communication data is an exercise of compulsory public power. If so, telecommunication service providers should be held legally responsible for privacy violations that occur in the provision of user information.

However, the Supreme Court finally dismissed the lawsuit for damages against the telecommunication service providers, arguing that the provision of user information by telecommunication service providers is a legal act if it conforms to the format and procedure prescribed by the Act. In other words, in accordance with Article 83 (3), when a request for the provision of communication data is requested in accordance with the need for investigation, it is allowed to say that it can be provided.

Summarizing the Supreme Court’s judgment, in the end, Article 83-3 of the Telecommunications Business Act has the same effect as excluding personal information as a communication user from the public’s privacy protection domain in the phase of disclosure to investigative agencies. For example, right now, if the law allows the publication of a phone book containing a combination of name and mobile phone number, or if the law prohibits car tinting so that the inside of a car is disclosed to the outside, the scope of protection of the public’s privacy will be reduced to that extent.

Substantial reduction of the scope of privacy protection… Constitutional Court, there was no consideration

 

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Judges including Yoo Nam-seok, President of the Constitutional Court (center), are seated at the Supreme Court of the Constitutional Court in Jongno-gu, Seoul on the afternoon of August 31st.

Judges including Yoo Nam-seok, President of the Constitutional Court (center), are seated at the Supreme Court of the Constitutional Court in Jongno-gu, Seoul on the afternoon of August 31st.
ⓒ Yonhap News

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This constitutional complaint asked for a substantive examination of such a law, that is, to deal with the issue of substantially reducing the scope of protection of privacy, but it can be seen that no consideration was given to this. Even if it does not deal with whether the warrant principle is applied or not, at least Article 83(3) provides that personal information as a communication user is the communication user’s identity information requested by the investigation agency in accordance with the need for investigation in the “communication confidentiality” that Article 83 of the Telecommunications Business Act intends to protect. It should have been judged whether the exclusion was in conformity with the Constitution.

Of course, the Constitutional Court judged that this system is to promote the speed and efficiency of the investigation in the early stages of the investigation, and it does not violate the excessive prohibition principle because the scope or reason for the information to be acquired is limited as follows.

 

In general, basic information necessary for identification or communication with others, such as names and titles, is naturally exposed in the field of social life, and the state does not constantly accumulate and use it to perform its functions properly. These are unavoidable pieces of information.

Such information itself is always subject to strict protection unless it serves as an identifier for accessing other dangerous information or is used to extract a person’s full or partial personality by combining with other personal information. hard to see

However, the provision of communication data does not end with the acquisition of identity information, but the degree of privacy infringement is the same as that of a search and seizure in that the fact that the person participated in the related telecommunications is known to the investigation agency. For example, not only does the Kakao nickname match the user’s identity, but the secret fact that the user is participating in the Kakao chatting subject to investigation is revealed. In this regard, Justice Lee Jong-suk’s minority opinion is more persuasive.

Among the communication data provided to investigative agencies, name, address, phone number, ID, and date of registration or cancellation, it can be said that it is not sensitive information in itself. However, when such information is combined or analyzed with other communication metadata, it can evolve into information that can more specifically represent individual behaviors, social relationships, personal tastes and politics, etc.

In particular, among the communication data, the resident registration number contains a lot of information beyond the level of simply identifying an individual to the extent that it is called a universal key, so it can serve as a link to other sensitive information.

In particular, the Constitutional Court decided inconsistent with the principle of due process, stating that if the state restricts basic rights, notification must be made. Of course. No matter how much the state can collect from its citizens, it cannot be stolen.

In this decision, it was confirmed that the provision and acquisition of communication user information is an act that limits the basic rights. Until now, the provision of information was revealed only when users individually inquired about the telecommunication service providers. However, after the revision of the law based on this judgment, it is mandatory to notify users, so the full picture of private information acquisition by the state will be revealed.

If the post-notification is mass-produced, all citizens, including investigators, will be able to feel the depth of the invasion of privacy. Privacy is a fundamental right for which procedural protection is as important as substantive protection, and this decision is welcome in that it enhances the transparency of state surveillance.

Returning to the main point, the Constitutional Court overlooks the fact that under such a legal system, citizens lose their freedom of anonymous communication the moment they engage in telecommunications. This is because, when a user becomes a telecommunication user, the investigative agency that has captured the contents or facts of the telecommunication can immediately identify the communication data provider through the communication data provision system. Regarding the importance of freedom of anonymous communication, the Constitutional Court has explained as follows.

 

“(Strategy) Anonymous expression combines with the speed and reciprocity of information transfer of the Internet to overcome the hierarchical structure of economic power or power in the real space to form public opinion free from class, status, age, gender, etc. Equally reflects the will of the people so that democracy can be further developed. Therefore, even if there is a risk that anonymous expression in the Internet space may cause side effects, it must be strongly protected in light of its constitutional value.”

This is the content of the decision of the Constitutional Court (2012. 8. 23. 2010 Heonma 47, etc.) in the Internet real-name constitutional complaint filed in 2010 by the Solidarity for Participation Public Interest Law Center. If you think about it, it is an inscription that will remain in the history of the world constitution. How many books for the democratization movement were distributed under the name of the ‘Editor’? Anonymity is so important to democracy.

Freedom of anonymous communication is not violated only when one is forced to keep one’s real name somewhere (Internet real-name system). It is also infringed when someone else takes out my real name stored in that way against my will (communication data provided). So, in 2010, the Solidarity for Participation began its 12-year journey by filing a constitutional complaint against the Internet real-name system and the communication data provision system at the same time.

Of course, this decision is not the end. Now, the law needs to be amended, but it will not end with an ex post notification. The principle of minimum collection under the Personal Information Protection Act has a constitutional meaning. Communication data provided but not useful should be deleted. In fact, the public’s interest in providing communication data was to verify the identities of people completely unrelated to the case. For example, after robbing a base station (acquisition of communication confirmation data) to identify the organizers of the assembly, communication data will be provided by numerous correspondents.

* Related cases still in progress >>>>[헌법소원] Why do mobile carriers hand over my personal information to investigative agencies?

Addendum | This article is duplicated on the blog of the Judicial Surveillance Center of the Solidarity for Participation and the Internet Media Slow News. The author of this article is Park Kyung-shin, a professor at Korea University Law School.

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