Comparative Legal Study on Introduction of Decryption Order to Third Parties
Authors:   The Korean Association of Criminal Procedure Law, Bae Chohee , Lee Kyung-Lyul 
Published: October 2022

Even if the investigative agency knows that the crucial information necessary to investigate the crime is stored in the mobile phone, unless the password is released, there is no proper way to confirm or secure it. Although the number of cases requiring forensics that can find the substantive truth of a case using digital forensic technology is rapidly increasing every year, successful decryption of mobile phones is not so common that they are considered a major obstacle to digital forensics success. It is a social problem that the case is buried because the relevant information necessary for the discovery of the substantive truth of an important event is not secured in a timely manner.
As a solution, the method of forcing the suspect to release the mobile phone password or requesting their cooperation through the decryption order system can be considered. However, this may excessively infringe on personal privacy and may violate the constitutionally guaranteed privilege to refuse self-incrimination. This is because the violation of the right to refuse to make a statement can be a problem depending on whether it is understood as personal information or a statement according to the characteristics of the mobile phone password.
Therefore, it was investigated whether the introduction of the decryption order to unlock the password of the mobile phone infringes on the basic rights guaranteed by the Constitution. This is because the degree of protection will vary depending on whether the view of the password is personal information or personal information and whether it is a statement or not, that is, depending on the nature and status of the password. In this case, if it is impossible to force a decryption order on individuals such as criminal suspects due to the fundamental rights guaranteed in the Constitution, we examine whether it is possible to force a decryption order or request cooperation from a third party, a mobile phone manufacturer, to solve this problem. searched for. In particular, third parties and companies were divided into mobile phone manufacturers and information and communication service providers, and reviewed from the perspective of protection and exceptional use of personal information.
In principle, personal information is subject to protection under the current law, and exceptional use other than the purpose of collection is specifically stipulated in the “Personal Information Protection Act”. However, since the specific interpretation and application are not necessarily clear, we looked at foreign legislative cases comparatively in relation to the provision of personal information to a third party. Although there are means to acquire, this method of cooperation takes a long time, so it was judged that it is not an appropriate means for securing evidence for digital crimes in the information society. In addition, the introduction of a decryption order to a third party is necessary as a means to secure criminal information not only to domestic companies under judicial jurisdiction but also to global companies abroad. It also struggled to find a harmonious way with an appropriate balance to raise the problem of discrimination.