Improvement of Seizure System for Sexual Crime Victim Videos and Establishment of Jurisdiction by Victim's Address... Recommendation to the Ministry of Justice

Ministry of Justice, Government Gwacheon Complex. / Photo by Choi Seok-jin

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Ministry of Justice is considering improvements to the seizure system for digital sexual crime victim videos, which are at high risk of infinite replication or redistribution. Additionally, a legislative amendment is being pursued to recognize territorial jurisdiction so that courts overseeing the victim's address or residence can issue search warrants during the investigation stage.

On the 17th, the Ministry of Justice's Expert Committee on Digital Sexual Crimes reviewed and approved the 'Improvement Plan for the Seizure System of Digital Sexual Crime Victim Videos,' announcing its seventh recommendation.

The recommended measures include four key points: ▲specifying the 'cut-out method' of seizure in the Sexual Violence Punishment Act ▲introducing a pre-seizure preservation order system in the Criminal Procedure Act ▲recognizing the victim's address, residence, or current location as the territorial jurisdiction base ▲joining the Council of Europe Cybercrime Convention.

Recommendation to Specify the 'Cut-Out Method' of Seizure?Obtaining Copies and Deleting Originals?in the Sexual Violence Punishment Act

First, the committee recommended that the Sexual Violence Punishment Act explicitly specify the seizure method for digital sexual crime victim videos as 'obtaining a copy of the electronic file and deleting the original file' (commonly known as the 'cut-out method').

Digital sexual crime victim videos existing as electronic files can be infinitely replicated, and unless the original and all copies are deleted, they can be redistributed at any time, posing a very high risk. Therefore, it has been pointed out that the existing seizure and search methods under the Criminal Act or Criminal Procedure Act have limitations.

Article 48(3) of the Criminal Act (Objects of Forfeiture and Confiscation) stipulates that if part of special media records such as electronic records is subject to forfeiture, that part must be destroyed. Article 106(3) of the Criminal Procedure Act (Seizure) states that "If the object of seizure is a computer disk or other similar information storage medium, the court shall specify the scope of the stored information to be printed or copied and receive it. However, if it is impossible to specify the scope for printing or copying, or if it is recognized as significantly difficult to achieve the purpose of seizure, the information storage medium may be seized."

Under these current legal provisions, there have been practical difficulties in seizing digital sexual crime victim videos stored on information storage media owned by third-party telecommunications service providers such as webhard, cloud, email, and messenger services.

Information storage media of telecommunications service providers contain personal information unrelated to the crime, and since the service is being provided, the information storage media cannot be seized. Moreover, there is no clear legal basis to compel telecommunications service providers or investigation targets to delete information.

As a result, in practice, investigative agencies have seized copies of the relevant data by obtaining cooperation from telecommunications service providers, using methods such as printing, copying, hard copy, or imaging.

After the 'Nth Room case,' as a practical measure, deleting the original as one of the 'necessary dispositions for seized objects' stipulated in Article 120 of the Criminal Procedure Act (Execution and Necessary Dispositions) has allowed exclusion of the possessor's possession. However, the issue of simultaneous sharing and possession by third parties who are not the possessor remains unresolved, according to the Ministry of Justice.

For example, even if the information storage medium is seized, if there is a copy in the cloud, simultaneous sharing and possession by the possessor, investigative agency, and third parties is possible.

Recommendation to Introduce Preservation and Access Blocking Order System for Victim Videos?Amendment of the Criminal Procedure Act Needed

The committee also recommended introducing a preservation order system at the pre-seizure stage, allowing investigative agencies to order internet platform operators where victim videos are distributed or stored to preserve the videos.

Under current law, there is no system that allows ordering preservation of seizure targets before issuing a seizure warrant. Although exceptions exist under the Criminal Procedure Act allowing seizure without a warrant, these are limited to cases where the suspect is arrested or detained, or in urgent situations at the crime scene during or immediately after the crime.

Even if investigative agencies discover victim videos distributed via information and communication networks, it is difficult to actively seize them without a warrant, so victim videos can be widely distributed while waiting for the issuance of a seizure warrant.

Therefore, when investigative agencies discover victim videos distributed via information and communication networks, it is necessary to introduce a system that orders the possessor or manager of the victim videos, such as telecommunications service providers, to preserve the victim videos so they are not deleted by the owner and to block access to prevent further distribution.

The 'Council of Europe Cybercrime Convention' includes a 'computer data emergency preservation order system,' and countries such as the United States, Italy, France, the Netherlands, Portugal, Norway, and Finland have implemented similar preservation order systems in their domestic laws.

In Korea, several bills to introduce such a preservation order system in the Criminal Procedure Act have been proposed, but the Court Administration Office has opposed them, citing concerns that it could impose unnecessary burdens on telecommunications service providers and that judicial control over potential abuse by investigative agencies is necessary, resulting in repeated failure to pass in the National Assembly.

In February last year, Representative Kim Hee-gon of the People Power Party proposed an amendment to the Criminal Procedure Act to establish an 'emergency preservation of electronic information' system, allowing urgent seizure, search, or verification of electronic information when there is a risk of evidence destruction or urgent need to secure electronic information.

Recognizing Victim's Address, Residence, or Current Location as Territorial Jurisdiction Base

The committee also recommended establishing a special provision in the Sexual Violence Punishment Act to recognize the victim's address, residence, or current location as the territorial jurisdiction base for courts issuing warrants or permissions during the digital sexual crime investigation stage.

Currently, there is no separate provision regarding territorial jurisdiction as a criterion for determining the court responsible for issuing warrants during the investigation stage. Therefore, the court responsible for issuing warrants during the investigation stage is determined according to the Criminal Procedure Act provisions that set the criteria for courts handling trials.

Article 4(1) of the Criminal Procedure Act (Territorial Jurisdiction) states that "territorial jurisdiction shall be the place of the crime, the defendant's address, residence, or current location," so the victim's address is not considered a criterion.

Additionally, Article 3(4) of the Prosecutors' Office Act (Establishment and Jurisdiction of Prosecutors' Offices) states that the jurisdiction of each level of prosecutors' offices and branch offices corresponds to the jurisdiction of courts and district court branches. Article 256 of the Criminal Procedure Act (Transfer to Another Jurisdiction) stipulates that if a case does not fall under the jurisdiction of the prosecutor's office to which it belongs, the prosecutor must transfer the case with documents and evidence to the prosecutor of the court with jurisdiction. This makes it difficult for the prosecutor's office overseeing the victim's address to request a seizure warrant from the court with the same jurisdiction.

In practice, the Ministry of Justice reported that during digital sexual crime investigations, there are frequent cases where warrant applications are dismissed due to territorial jurisdiction violations, causing delays in investigations.

Recommendation to Join the Council of Europe Cybercrime Convention?Strengthening International Criminal Judicial Cooperation

Finally, the committee recommended promptly joining the 'Council of Europe Cybercrime Convention' to establish a foundation for accelerating and activating international judicial cooperation in digital sexual crime investigations.

This measure reflects the fact that distribution of victim videos through internet sites using overseas servers has emerged as the biggest problem in digital sexual crimes.

To expedite and enhance efficiency in international criminal judicial cooperation related to cybercrime, the 'Council of Europe Cybercrime Convention,' which regulates cross-border access to computer data, has been signed by 66 countries including 46 Council of Europe member states as of January this year, but Korea has not yet joined.

The convention enumerates types of cybercrime acts that contracting parties must criminalize and stipulates investigative methods for cybercrime such as emergency preservation orders, information production orders, and seizure and search methods for cybercrime.

In particular, the convention allows contracting parties to issue production orders for subscriber information to other contracting states and permits, under certain conditions, direct issuance of production orders to foreign internet service providers without going through mutual legal assistance procedures.

It also permits seizure and search of domestic computer systems connected to the targeted computer system for cybercrime and regulates access to foreign systems through judicial cooperation.

The committee stated that if these measures are implemented, expected effects include ▲rapid investigation and prevention of redistribution of victim videos through seizure methods tailored to the characteristics of digital sexual crimes and special territorial jurisdiction provisions during the investigation stage ▲protection of victims by preserving victim videos as evidence through preservation orders while blocking access to forfeiture targets by suspects, and ▲establishment of a legal foundation for swift and efficient international judicial cooperation.

The Ministry of Justice said, "We will continuously strive to review and improve the overall criminal justice response system to sexual crimes and make every effort to protect victims."

This content was produced with the assistance of AI translation services.