Peeking into our smartphones
The author is an editorial writer at the JoongAng Ilbo.
Seizing the cell phone of a suspect has become a normal part of an investigation, not an exception. For prosecutors and police, a smartphone is often a “smoking gun.” They have no reason to hesitate because the phone illustrates a suspect’s moves in detail. Although there may be no proof of criminal action, a smartphone often contains information that can be used to pressure the suspect. Therefore, whether you have seized a smartphone or not has become a decisive factor in a successful probe.
Prosecutors are currently in search of a smartphone belonging to the wife of Gyeonggi Gov. Lee Jae-myung, and a person suspected of fraud recently destroyed his phone during a police chase. The importance of a smartphone is undeniable in our digital society.
The office of the presidential senior secretary for civil affairs, led by a liberal law professor, and auditors’ offices at ministries are looking into the smartphones of public servants without reservation, and we wonder how we should relate this situation with the current administration’s promotion of human rights. As we see in the movie “Perfect Strangers,” it is an anti-democratic, violent idea to lay bare the contents of a smartphone, which contains both public and private functions. In the movie, the guests at a dinner gathering are told that they have “nothing to hide,” and the latest raids of smartphones are no different.
The search and seizure of a smartphone is in violation of constitutional values, like our right to privacy. “The privacy of no citizen shall be infringed,” Article 17 of the Constitution says. “The privacy of correspondence of no citizen shall be infringed,” according to Article 18 of the Constitution.
The search and seizure of smartphones is against the clauses in the Constitution that guarantee freedom of expression and bar censorship. The secret pact of the government and law enforcement authorities is discouraging the love that Koreans have for their smartphones.
Phone calls and text messages that illustrate daily lives, emails, records of travels and photos and emotional exchanges between family members, such as concerns for their elderly parents, can be laid bare in our reality. Financial records that show that you are moving around your small fortune to pay debt, make investments and send private KakaoTalk messages with friends which sometimes contain bad words can be looked into by the government, which has now become “Big Brother.” In other words, it is possible to investigate the social media politics of Cho Kuk, presidential senior secretary for civil affairs, and messages sent by ruling party politicians to save him. Of course, that won’t happen in this administration.
“From the perspective of an investigation and its accomplishment, a smartphone is a black box that will fill up your desires,” said a prosecution official. The search and seizure of a smartphone to analyze its contents is governed by no law at this time. All contents can be investigated through digital forensic analysis, and they can be used in an investigation.
On the other hand, the search and seizure of a computer is more restricted. Key words linked to charges listed in a warrant will be searched, and only those outcomes will be extracted. In the past, computers were either completely copied or seized, but those practices have raised some legal issues. Data seized through keyword searches must be viewed by suspects and witnesses, and they can only be selected as admissible evidence when there is an agreement from both parties. Smartphones, however, have no clear legal boundary.
The loophole can lead to a separate investigation using the seized phone. It can also become a means to pressure the phone’s owner by exposing weaknesses in his or her privacy. A former executive of a conglomerate committed suicide because an additional probe was planned based on data mined from their smartphone.
What happens when a suspect discards or destroys a smartphone during a raid? If there is proof that they contacted an accomplice, the suspect can be punished for destroying evidence, but that is not easy.
Although it is extremely difficult to obtain a warrant to eavesdrop a phone to catch a spy, under the constitutional value of “freedom of communication,” it is extremely easy for law enforcement authorities to seize ordinary people’s mobile phones, probably because our understanding of the law is still immature.
Life is about making choices. The convenience of an investigation under the justification of “eradicating long-accumulated evils” cannot come before constitutional values. The legislature must act to protect our basic rights.
In Germany, an individual’s diary or their memos cannot be used as a decisive evidence in a criminal case, which gives us something to think about. Recently, former officials of the special inspection team at the office of the presidential senior secretary for civil affairs refused to hand over their smartphones amid an investigation against their suspected corruption charges.
They probably learned something when they looked into the smartphones of other ministry officials. Perhaps hiding one’s smartphones is the wisest thing to do in Korean society.
JoongAng Ilbo, Dec. 7, Page 32
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