Constitutional Court: "Acquisition of Communication Data by Investigative Agencies Without Post-Notification Procedure Violates Constitution"

Constitutional Court Grand Bench, Jongno-gu, Seoul / Photo by Moon Honam munonam@

[Asia Economy Reporter Kim Daehyun] The current law allowing telecommunications companies to provide subscribers' personal information to investigative and intelligence agencies without subsequent notification has been ruled unconstitutional.

On the 21st, the Constitutional Court unanimously decided in a constitutional complaint case that Article 83, Paragraph 3 of the Telecommunications Business Act is unconstitutional, stating that it "violates the information subject's right to self-determination over personal information." The decision of constitutional inconsistency means that although the law violates the Constitution, its effect is temporarily recognized to allow for legislative amendment when immediate suspension would cause confusion.

On this day, the Constitutional Court stated, "In cases where there is a request for communication data provision, the user as the information subject is not notified in advance that such a request has been made, and when the telecommunications business operator (telecommunications company) provides communication data to investigative agencies, this fact is not separately notified to the user," adding, "It is not that the acquisition of communication data itself violates the Constitution, but that the failure to establish a post-notification procedure for the acquisition of communication data violates the Constitution."

The provision of the Telecommunications Business Act under review stipulates that when the head of a court, prosecutor, or investigative agency requests the telecommunications business operator to inspect and submit communication data for investigation, trial, execution of sentences, or information collection, the operator may comply with the request.

Based on this provision, the prosecution, police, High-ranking Officials' Crime Investigation Office (Gongu Office), military, and National Intelligence Service can request data from telecommunications companies without a court warrant. The data includes the subscriber's name, resident registration number, address, phone number, ID, subscription date, etc. Subscribers cannot know whether their personal information has been provided to investigative or intelligence agencies unless they check themselves. However, the Constitutional Court judged that the fact that investigative agencies receive communication data without presenting a warrant is not problematic in itself.

Regarding the ruling, a Gongu Office official stated, "To block indiscriminate communication data inquiries, we have established our own communication investigation control measures, which have been in effect since April." The measures in operation include ▲ prior and post control by a 'Communication Data Inquiry Examiner' (also serving as Human Rights Investigation Policy Officer) ▲establishment and operation of 'Communication Data Inquiry Inspection Guidelines' (regulations) ▲setting communication data inquiry standards and designating approval authority by case (raising delegated authority) ▲mandatory regular (bi-monthly) reporting and review by the Investigation Advisory Group on communication data inquiry situations ▲introduction of a selective analysis program for communication data inquiry targets.

The Gongu Office official added, "As a follow-up to the constitutional inconsistency decision, we will actively participate in discussions if the National Assembly pushes for amendments to the relevant law provisions to seek the best solutions," and emphasized, "even before the law is amended, we will continuously ensure not only the legality but also the appropriateness of the communication data acquisition process through the internal and external institutional and technical control devices we have established."

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