In order to understand warrant requirement under the constitution, and to
reveal whether it should still be valid in a present Intelligent Technology
developed, it is meaningful to look over the initiation and development of the
warrant system; the reason why the warrant system has begun, and what the
system is to guarantee. From the constitutional and human rights’ point of view,
historically the warrant system can be interpreted as a procedural guarantee to
protect the human body from the execution of state power.

Today, warrant system has been modified to suit the circumstances of each
country, but the key point is that the compulsory disposition of investigations
by state power should be made not by the will of investigative agencies or others,
but by the due process; whether compulsory disposition by neutral and
independent agencies is essential; whether the public interest through investigation
is superior enough to justify the violation of the basic rights of the parties to
determine whether to enforce the arrest. At the same time, it was developed
into an important principle that the general warrants-a warrant with expanded
search authority by uncertainty of the range of investigation- were not accepted.

The warrant system is originated from Anglo-American law, and according to
the Constitutional Court, the basic contents of the system mean that it should
be based on a warrant issued at the discretion of an independent and neutral
judge in the execution of compulsory measures that violate the freedom of the
body. Our Constitution stipulates the principle of pre-claims and the presentation
of warrant, it also defines prosecutors as the person who has a right to apply
for warrants. However, it is still unclear about the exact concept of the warrant
system and its essence, what the constitutional and criminal procedure laws mean.
From this reason, conflict of various opinions was ignited, and the question of
whether warrant requirement will be applied for such administrative disposition
as disciplinary action and administration investigation, etc. But the Constitutional
Court recently judged that warrant requirement is not limited to arrest, seizure
and search, so that discussions on the scope of the system can be expected to
continue. In addition, advanced investigative techniques are emerging, unlike
when the doctrine of warrants was specified. In relation to these investigation
techniques, it was confirmed that various precedents and commentaries exist for
the Warrant rule.

Based on the essential contents of the rule of warrant, this study examined
whether the rule could be applied to new investigation techniques and whether
it could be transformed in the process of application. This study shows the
theoretical basis of the law and the basic principles in several respects; from
the Constitutional and procedural view points. As a result, this study reviews the
principle of pre-warrant, the principle of warrant presentation, the principle of
warrant issue, the principle of legal step, the principle of post-warrant, and the
principle of prohibition of a general warrant. In addition, in order to explore
the basic contents of the warrant rule, the foreign legislative case concerning
on the essence of the system is reviewed.

Looking at the foreign legal system, we could confirm that there exist not only
acceptance and approval of wiretapping, but access to Internet access records,
Internet service providers’ cooperative obligations, and committees and courts
exclusively responsible for issuing warrants in criminal procedures. Regarding
overseas specialized courts, the U.S. Foreign Information Surveillance Act(FISA)
has been amended to enable the acquisition and use of specific business records,
namely third-party transaction records. However, according to the Fourth
Amendment, search warrants are generally based on considerable reasons to
believe that a crime has occurred or is in progress, but the FISA, without having
to do with criminal charges, does not apply to general provisions. Therefore,
it was found that surveillance by the FISA was allowed on the basis of probable
cause in monitoring hostile foreign forces and their agents.

In most developed countries, it is legislated to make it mandatory for operators
to prepare wiretapping facilities. This obligates Internet service providers to
cooperate rather than to submit arbitrarily, and it admits admissibility of evidence
if necessary only. In order to do so, the government should consider a system
that can cooperate with telecommunication businesses by creating new provisions
about having equipment to enforce telecommunication restrictions. It is also
important to make guidelines for the protection of Human Rights, and to establish
a tentatively-named “Technical Advisory Committee on Communications
Restriction” that can provide technical advice and gather opinions from related
agencies.

In addition, we can consider enacting a special law to suit our situation. In
most foreign countries, make it possible to provide stored information or search
on it, and if it is difficult to provide stored information obligatorily in Korea,
the law enforcement agencies should be allowed to receive stored information.
In other words, even stored information should be considered not only people’s
information rights but protection of basic rights, it should be approved by the
court to allow the execution of administrative warrants under Communications
Secrets Protection Act. It is also necessary for the court to guarantee basic rights
by letting the subject of information under the Personal Information Protection
Act know the facts.

This study enhances transparency in the performance of national security by
clarifying the procedures and scope of access by investigative agencies to cyber
hazards. And besides, legislation was proposed to create conditions for the
government and the private sector to cooperate for the improvement of the
people’s information rights and security risks in cyberspace.
In conclusion, it is necessary to establish the standards for permission of the
court and to come up with the procedures and measures to prevent investigative
agencies from abusing their authority and violating human rights along with
allowing investigative agencies to utilize new investigative techniques. Human
rights can continue to be violated by new methods of investigation following
scientific advances, and it is reasonable to make regulation through new
legislation of criminal procedures rather than leaving the interpretation to
investigative authorities.