hankyoreh

Hankyoreh reporter Bang Jun-ho (second from the right) speaks at a roundtable discussion on phone data collection by state institutions

On Mar. 28, civic group People’s Solidarity for Participatory Democracy (PSPD) announced that it would be making a freedom of information request and filing a lawsuit for damages against state institutions including the National Intelligence Service (NIS) and the police and prosecutors that have viewed individuals’ telecommunications data.

“We are planning to bring together instances in which telecommunications data has been viewed and to categorize these by job and by the agency that requested the data to sue for damages and to ask these agencies to release their official data request documents,” said Yang Hong-seok, an attorney at PSPD’s public interest law center. PSPD means to move forward with the lawsuits by dividing the victims into categories including activists (labor unions), lawmakers (journalists) and members of the public.

In the case of activists (labor unions), the civic group is likely to file lawsuits for damages in regard to telecommunications data that may well have been provided to government agencies as part of what is known as a “base station investigation.” Base stations are the transceivers that link cell phones and other mobile devices to the mobile network.

When government requests to view the telecommunications data of multiple people who were at the same location can be traced back to a document with the same number, there is reason to believe that the agency reviewed all the telecommunications data from a single base station. This could mean that the agency overstepped its authority and infringed on civil liberties.

With reporters and lawmakers, their occupations suggest that investigators would have little reason to review their telecommunications records. As such, it is possible to sue the agency in question for damages in connection with overstepping its authority and violating civil rights.

When agencies review the phone records of members of the general public without any apparent reason, a freedom of information request can be filed to review these agencies‘ official data request documents. This can be used to confirm whether these agencies broke any laws.

“Thus far, the issue of government investigators and intelligence agencies infringing on civil rights has not really been taken up by the courts, but we are planning to use these requests for telecommunications data as an opportunity to raise this issue. Basically, these lawsuits are an attempt to blaze a trail on this issue,” said Yang.

In the middle of next month, MINBYUN-Lawyers for a Democratic Society is planning to ask the Constitutional Court to review Article 83 of the Telecommunications Business Act.

“In the past, a petition about the constitutionality of Article 54 in the old Telecommunications Business Act (Article 83 of the current version) was rejected by the Constitutional Court. This time around, we are refining our arguments based on recent decisions by the Supreme Court that state that mobile service providers offering intelligence and investigating agencies with telecommunications data is equivalent to those agencies exercising their public authority through force,” said Kim Ji-mi, a lawyer with MINBYUN.

In 2012, the Constitutional Court rejected a request for judgment on the constitutionality of Article 54 of the old Telecommunications Business Act, which allows mobile service providers to comply with requests for telecommunications data to carry out an investigation or to guarantee national security. The plaintiffs had argued that Article 54 infringed on the freedom of expression and the right to privacy and to secrets in communication.

“Since companies that submit telecommunications data to government agencies are not being compelled to do so by those agencies, it would appear that such submission is not a violation of civil liberties by government agencies, which this court is allowed to judge. Furthermore, since the plaintiffs are taking issue not with the law itself but with the act of providing this data, it does not meet the requirement of being directly connected,” the court said in its decision.

But MINBYUN believes that the situation has changed over the past four years. In March of last year, the Supreme Court ruled that online portal Naver was not liable to pay damages for providing private telecommunications data to the government, but in the same decision it concluded that the act of providing telecommunications data could be regarded as a de facto use of public authority.

“Many people are beginning to become aware not only about the infringement of their private information but also that there is no regulation about informing them of who requested the information after the fact and that they cannot find out why this information was provided,” said Kim. “While we are still in the process of polishing our legal arguments, we believe that it will be possible to file a constitutional petition that draws attention to such changes in the situation and to the right to know, which is currently obstructed by Article 83 of the Telecommunications Business Act.”

By Bang Jun-ho, staff reporter

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