Prosecutors have indiscriminate access to personal email communications

Posted on : 2009-04-24 10:03 KST Modified on : 2009-04-24 10:03 KST
Legal experts call this an infringement on personal information in criminal procedure, civic groups demand an amendment to protection of communication
 former candidate for superintendent of Seoul Metropolitan Office of Education
former candidate for superintendent of Seoul Metropolitan Office of Education

Prosecutors seized and opened seven year’s worth of e-mail records for more than 100 individuals last year during their investigation of Jou Kyong-bok’s violations of South Korea’s campaign finance laws. Jou, 59, Konkuk University professor was a candidate for superintendent of the Seoul Metropolitan Office of Education (SMOE) last year and was defeated by current SMOE superintendent Kong Jeong-taek.

In response, legal circles and civic groups are criticizing this an “excessive invasion of personal life,” and are calling for stricter conditions on the search and seizure of e-mails.

On Thursday, while obtaining a copy of investigation data for Jou’s case, the Hankyoreh discovered that the First Public Security Division of the Seoul Central District Prosecutor‘s Office obtained and investigated the content of e-mail records for over 100 investigation targets between October and December of last year. The court issued warrants to search and seize e-mails, but in the cases of Jou and Kim Min-seok, secretary general of the Seoul chapter of the Korean Teachers and Education Workers’ Union, the confiscated e-mails taken spanned a period of over seven years, from October 2001 to December 2008.

In an inquiry statement submitted to the Seoul Central District Court last month, one internet portal site that offers e-mail service stated, “We sent the prosecutors all e-mails stored on our server on the day they requested them, without exception.” This portal site gave the prosecutors all e-mails accumulated since the sign-up dates of 23 members, one identified by the surname Song, including e-mails from their deleted messages folders. The records presented from Konkuk University and 13 portal sites amounted to more than 41,300 messages, which prosecutors either received electronically through the e-mail of the investigator in charge or through USB flash drives that were directly loaded. “There should not be a problem, since it was a fair exercise of the law using court-issued search and seizure warrants,” said an official with the prosecutors‘ office.

Some legal experts suggest, however, this “hurricane-style” e-mail investigation by prosecutors made use of loopholes in the law. The warrants that prosecutors requested from the courts indicated that they would seize “e-mails that could confirm the transmission of election funds to Jou,” without specifying a period of time. “I realized that personal information had gotten into the investigative body’s hands when the prosecutors starting grilling me about time and places,” said Kim Min-seok. “I feel like my personal life is being stripped naked by public authorities,” Kim added.

There is currently no way for the parties subject to e-mail search and seizure to know that their personal information has landed in prosecutor‘s hands. The Protection of Communication Secrets Act specifies that parties are to be notified within 30 days in the case of wiretapping, but no stipulations of this kind exists for searches and seizures. “When there are considerable grounds for suspecting someone of committing a crime, warrants are issued specifying a place and time,” said Korea University law professor Park Kyung-shin. “If the prosecutors took personal information, they need to notify the parties in question of this,” Park added.

Also problematic is the fact that courts are issuing warrants that have an excessively broad scope. Prosecutors currently define e-mails as “objects” when requesting warrants to confiscate them, citing Article 106 in Criminal Procedure Law. Even though e-mails actually function as a “means of communication” like telephone calls, prosecutors and courts view them as objects after receipt and transmission. “After transmission and receipt are complete, e-mails are considered objects by the current law, and search and seizure warrants are issued rather than wiretapping warrants,” said Seoul Central District Court spokesman Kwon Tae-hyung. “No time period needs to be specified for searching and seizing objects,” Kwon said.

For this reason, many in the legal field are commenting that e-mails should be viewed as communication. “Investigating e-mail information with search and seizure warrants, which customarily do not specify time limits, presents considerable potential for infringement on personal information,” said attorney Kim Hyeong-nam. “An amendment to the Criminal Procedure Law and Protection of Communication Secrets Act needs to be created,” Kim added.

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