A Study on Measures to Guarantee the Right to be Present for the Actual Person Subject to Search and Seizure: Focusing on Notification During Search and Seizure, and Data Preservation Orders or Reques
Authors:   The Korean Association of Criminal Procedure Law, Kim Mindong , Lee Kyung Lyul 
Published: April 2024

As the use of smartphones and third-party applications has become widespread, users have begun to communicate not only through traditional text messages but also via various social media apps such as KakaoTalk and Facebook. The data generated in this process is stored on the servers of service providers, offering new opportunities to secure digital evidence beyond the electronic information stored within the devices. However, this data is also vulnerable to destruction and tampering, making it challenging to fully utilize in criminal investigations. Moreover, recent court rulings require that even during searches and seizures involving data stored by third parties, the ‘actual person subject to search and seizure,’ that is, the suspect, must be granted the right to be present. This stands in contrast to past investigative practices, where evidence was secured from third-party data through voluntary submission or search and seizure without notifying the suspect to maintain the confidentiality of the investigation. There are concerns that this shift may compromise investigative secrecy, increasing the risk of evidence destruction and making investigations more difficult.
This paper sought to explore ways to maintain the effectiveness of investigations while meeting the court’s demands. First, it proposes a method to ‘defer’ notification to the suspect, the actual subject of seizure, during the execution of a search and seizure by interpreting Article 122 of the Criminal Procedure Act. Specifically, it suggests not notifying the suspect in advance when obtaining data held by third parties under ‘urgent circumstances,’ such as when there is a risk of data loss, and instead, after the data has been secured and the urgency is resolved, notifying the suspect and guaranteeing their right to be present during the process of selecting information relevant to the alleged crime. This approach aims to protect the rights of the suspect during the search and seizure process while maintaining investigative secrecy, thereby allowing law enforcement to secure necessary evidence safely. The second approach is a more fundamental solution: the introduction of a ‘data preservation’ regulation. Data preservation would allow investigative agencies to request or order third parties to preserve data, thereby preventing its deletion or alteration in urgent situations. The need for such measures is recognized in Articles 16 and 17 of the European Convention on Cybercrime, as well as Articles 25 and 26 of the recently concluded UN Cybercrime Convention. Countries such as the United States, Germany, and Japan have also legislated data preservation measures under these international agreements. In South Korea, there has also been ongoing discussion regarding data preservation, with related bills consistently proposed since the 18th National Assembly, but none have passed into law. Therefore, this paper emphasized the necessity of data preservation and proposed specific legislative measures. The introduction of data preservation measures would help strengthen the capability of investigative agencies to effectively secure evidence stored by third parties while also ensuring the protection of suspects’ fundamental rights, without violating the principles of due process due to the absence of explicit regulations or rendering the advance notification requirement for the right to be present a dead letter. Furthermore, by providing clear legal guidelines, these measures would ensure that all relevant parties can adhere to these guidelines, thereby contributing to enhanced legal stability.