Legislative tasks for the realization of the rule of law In the search and seizure process of digital evidence

About 20 years after the problem in the process of collecting digital evidence first became a problem in the retrial process, Digital evidence is still left to the realm of interpretation rather than law. Article 106 (3) was newly established in 2011 due to the revision of the Criminal Procedure Act, but this regulation only works as a cause of the problem, and the investigation rules established in 2020 also standardize the contents of the appendix that the court used to attach to the seizure warrant, and the problem with the appendix remains as is. The problem was amplified by bringing the problem of the annex to the legal code. There are many difficulties that cannot be left to the realm of interpretation any longer, causing conflict, and creating gaps in punishment as a result, so a legislative solution is urgently needed. In celebration of the launch of the 22nd National Assembly, we would like to propose four aspects of urgent legislative tasks related to digital evidence. First, Article 219 of the Criminal Procedure Act, which applies the provisions for participation in seizure at the trial stage (§121, §122) to the investigation, is a legislative mistake and must be corrected. In order to harmonize the conflicting values, it is reasonable to divide the content of participation rights into ‘participation’ only at the step of taking out and ‘record’ for the subsequent searching process. Second, the current selective search and seizure prevents the securing of means to prove the authenticity of digital evidence, creating a gap in the realization of the rule of law. Therefore, a third-party “consignment storage” system for digital evidence similar to civil preservation dispositions was introduced to take advantage of selective search and seizure, but to take advantage of its side effects needs to be removed. Third, according to the current precedent, digital evidence that was seized incorrectly will be blocked from being used as evidence in other cases. By introducing a system to request a warrant to seize confiscated digital evidence, cases in which charges are acknowledged should not be acquitted due to problems in determining the relevance of evidence during past investigations. Fourth, the anti-forensic response capabilities of investigative agencies are insufficient to keep up with the speed of security enhancement for mobile devices such as smartphones. In order to respond in a timely manner to internationalized and organized serious crimes such as terrorism, drugs, and sexual exploitation of children and adolescents, it is necessary to introduce a decryption order system before it is too late. Finally, we need to clarify terminology. Electronic information is not an appropriate term in the rules of investigation. This is because the uniqueness of digital evidence is due to ‘digital’ rather than ‘electronic’. We hope that the difficult issues surrounding digital evidence will be reasonably resolved through legislation in the 22nd National Assembly.