Court-prosecution conflicts regarding search and seizure

Conflicts between the court and the prosecution are intensifying over proposed amendments to the rules of criminal procedure, specifically focused on strengthening the court's oversight of search and seizure warrants. The crux of the revision bill, announced by the Supreme Court in February, involves the provision for face-to-face hearings before warrant issuance and the requirement to document search terms and periods for computers or mobile phones. During an academic conference on Friday, the court asserted that “the infringement on civil privacy resulting from the search and seizure of electronic information has reached a critical stage.” Conversely, the prosecution vehemently opposed the amendment, expressing concerns about the potential leakage of investigative secrets and delays in the investigative process.

Search and seizure operations play a vital role in obtaining tangible evidence; however, they inherently impose limitations on the fundamental rights of individuals. These operations must be conducted within the narrowest possible scope, yet the number of seizure and search warrant requests has surged by 3.6 times since 2011. Consequently, concerns regarding excessive search and seizure measures have been mounting within the legal community and beyond. The court is the sole institution capable of regulating this issue, yet the rate of search warrant issuance exceeded 90% last year. As a result, the current review process necessitates improvement as it fails to filter out warrants for unrelated investigations.

Citizens are particularly concerned about the extensive seizure and search of mobile phones. These devices contain highly sensitive information, including personal data, social media conversations, and emails. It has been argued that when an investigative agency seizes an entire mobile phone, it is akin to conducting an endless search of someone's entire residence. On the other hand, the prosecution contends that it is impractical to conduct targeted searches by specifying search terms, especially in investigations related to online sex crimes and drug offenses where various slang terms are used. For instance, the term ‘ice,’ which refers to methamphetamine online, can be endlessly modified as ‘I스’ or ‘아이s.’

Balancing the need for secret and swift investigations with the protection of citizens’ fundamental rights is crucial. It is essential to find a balanced approach that upholds both values. In this regard, the court intends to restrict face-to-face hearings to individuals directly involved in the investigation, such as prosecutors and police officers, to prevent the unauthorized disclosure of sensitive investigative information. Furthermore, the court aims to adopt a flexible approach by accepting a broad range of search terms that align with the nature of each case. For example, a warrant related to ‘hemp’ could include search terms encompassing ‘related terms associated with hemp.’ As the court proceeds with the amendment to the rules of criminal procedure, it is vital to address this aspect explicitly.

Prosecutors should adopt a more constructive approach, offering alternatives instead of outright and unconditional opposition to the courts. The arrest warrant substantive review system initially faced opposition from the prosecution due to concerns over the leakage of investigative information in 1997. Still, it has proven to be a valuable tool for safeguarding the rights of suspects. It is high time to develop a comprehensive strategy that enhances the effectiveness of investigations while eliminating unnecessary search and seizure actions.