Reflections on the Problems with the Code of Procedure for Digital Evidence

The importance and volume of digital evidence has already surpassed that of analog evidence. However, the normative framework for digital evidence is still not clearly established in law. The objects that are the vessels of digital evidence, such as computers, cell phones, and information storage media, may be subject to existing regulations. However, the rules for seizing and searching the information on them are not sufficient. The digital evidence norms are only partially stipulated in the Criminal Procedure Act and the Code of Investigation, and most of the norms are formed through Supreme Court precedents, and the specific contents are stipulated in the orders, regulations, notices, and guidelines of investigative agencies. Even the general seizure and search regulations explicitly stipulated in the Criminal Procedure Act are subject to due process concerns. The due process compliance of digital evidence, which is a compulsory disposition with a weak legal foundation, is even more controversial. Moreover, changes in Supreme Court precedent may render previously legal digital evidence procedures illegal. In light of this framework of digital evidence norms, this article analyzes the problems with the Supreme Court's recent procedural norms for seizing electronic information in voluntarily produced articles and dropped or abandoned articles. As a result, there is an urgent need to explicitly establish the currently formed procedural rules for digital evidence in the Code of Criminal Procedure. The current rules also lack provisions for electronic information in voluntarily submitted, dropped or abandoned articles. Therefore, the Code should also explicitly provide for procedures related to electronic data in voluntarily submitted, dropped or left articles. According to case law, voluntary submissions and lost articles also require relevance to the alleged offense and a guarantee of the right to participate. Although the Supreme Court guarantees the right of participation of the person actually seized, it is questionable whether the right of participation is guaranteed in practice. Therefore, the Supreme Court considered how the right of participation of the detained person could be guaranteed in practice. The Supreme Court also considered that it is not necessary to recognize the relevance and the right of participation in the absence of a submitter for apparently lost items that need to be identified. However, in the light of the normative framework formed by the Supreme Court, electronic information has the potential to identify the right holder, so it is necessary to ensure the right of participation through the process of identifying the right holder.