A study on State Surveillance of Telecommunications in Jurisdiction of the European Court of Human Rights
Authors:   Korean Association of International Association of Constitutional Law, Lee Sang-Hak 
Published: June 2023

The pace of progress in digital technology is difficult to predict. At the same time, the growing threat of serious crime raises questions about the tension between “individual freedom” and “public safety” more acutely than ever. The conflict between the two is clearly revealed in the discussion of the state's surveillance of communications. The European Court of Human Rights has so far guaranteed the right to respect for privacy “offline” and the right to freedom of expression. In particular, it is noteworthy that in the ruling on May 25, 2021, the judgment was made in connection with the current situation transferred to “cyberspace”. Until recently, the judgments of the European Court of Human Rights regarding the Internet have not been so prominent. However, it is no exaggeration to say that the European Court of Human Rights is now facing new challenges due to technological advances. Data movement on the Internet transcends national borders, and data theft by government agencies is possible due to the opaque route. There is no question that the scope of surveillance is much broader and that it gives access to the core areas of privacy. The European Court of Human Rights stated that wiretapping is possible only when there is “serious suspicion against the person being monitored.” General and unrestricted surveillance violates the European Convention on Human Rights. Above all, it cannot be denied that in recent years, it is inevitable to grant wide-ranging powers to intelligence agencies to respond to threats to national security. As is well known, it would be difficult to imagine even a moment of everyday life freed from today's information and communication technology. Against the background of this digital stage, techniques that ensured encryption and anonymity, such as the dark web and telegram, appeared. Therefore, it is self-evident that finding and responding to clues in the field is virtually impossible. In line with this situation, it is necessary to legally prepare appropriate countermeasures for the security authorities. At the same time, the European Court of Human Rights emphasizes that legal and technical safeguards must be secured to prevent abuse and violation of fundamental rights. Ultimately, in order to collect information related to serious crimes or acts of terrorism in today's information and communication environment connected to the Internet of Things, corresponding regulations must be prepared. This is the principle of equality of arms. From this point of view, the general authority to collect information regulated by the Act on the Performance of Duties by Police Officers and “Regulations on Information Collection and Processing” is not only incompatible with today's digital information and communication environment, but it is difficult to avoid criticism that it is a way that is far behind in comparison. In future legislation, disclosure and non-disclosure (secret) means should be separated, and in the case of non-disclosure, stricter requirements should be set in consideration of the high degree of violation of fundamental rights.