With the advancement in information technology, smart phone (in which the function of computer is installed) has been developed and widely distributed. This has led to a new paradigm of so-called ‘Portable Personal Computer’, in which a myriad of geographical-information-based service is provided. Geographical information (‘GI’, hereinafter) on individuals is, accordingly, one of the most important resources for information in the 21th century. The proliferation of GI-based service enables us to identify the whereabouts of missing children or people in need of rescue, thereby facilitating swift actions to rescue them. However, there is a rising concern on the legitimacy of the way of collecting GI, and on the misuse or abuse of the collected information by government authorities or corporations. Along with GI, Radio Frequency Identification (‘RFID’, hereinafter) technology has risen as the core of ‘Ubiquitous Technology’ generally referred to as the information-communication technology of the next generation. In spite of the fact that RFID can function, with Integrated Circuit (‘IC’, hereinafter) Chip and wireless information network, as an attractive and powerful tool for the prevention and investigation of crime and prison management as well, it is controversial for the reason of the possible intrusion on individuals’ privacy and, potentially, comprehensive control over the general public. With regard to CCTV, its installation has been expanded for the purpose of crime prevention and traffic control, thereby exposing citizens of Seoul to CCTV around 150 times a day, on average. Despite the expanding trend of its installation, CCTV has been on a continuous criticism that it violates individuals’ right to portrait and limits their behaviour to some extent, apart from the controversy on its effect.
The technological development enables the government to use GPS to identify individuals’ location and RFID to search the route of individuals’ movement, and CCTV to trace places where individuals routinely visit and even situations they face. If location tracking becomes routinized through GPS and RFID and if the surveillance of criminal justice system on individuals is strengthened, there is a concern that Korean society might become the contemporary version of Panopticon (a type of institutional building designed by the English philosopher Jeremy Bentham to effectively watch prisoners) and that any mobile phone users can be effectively controlled as if they are monitored by the electronic bracelet attached to their body part. The legal policies pursuing restraints monolithically do not appear to have been effective, thus creating the need to find a way to effectively use RFID, CCTV, and GI from a future-oriented perspective. In contemporary society, often referred to as information society or risky society, the time gap between the law and science is so much bridged that changes in science leads the law to follow the changes instantaneously. As the public awareness of rights rises and, consequently, discussions on the violation of privacy that occur along with the use of technology cannot remain as a minor issue anymore, and this necessarily requires legal modifications to keep pace with technological development.
Location information refers to information on places in which a transportable object or an individual is or was at a certain time. The current law separates location information from individuals’ location information by its definition to prioritise the protection for individuals’ location information because of its specificity. Whereas a benefit of location information is contributing to the construction of the social safety net by, for example, rescuing people in the face of an imminent danger, it has a drawback of intruding individuals’ privacy. Thus, the use of location information for criminal justice policy should be divided into public sector and private sector. In public sector, the range of subject of location information should be expanded to enable the fire department and the police to use the location information of a person in need of rescue and the witness who reports the emergency. And, the current procedure of submitting a document to check the relationship between the person who reported the emergency to the authority and the rescued should be changed to the way in which the rescuing institutions check the information on the family relationship registered on the web of the Ministry of Court Administration. A fine has to be imposed in the case of false alarm so that location information for rescue cannot be used merely to identify runaways or victims of domestic violence, and the requirements for issuing alert should be eased to increase the possibility of using location information for criminal justice policy. A warrant should be required when criminal justice institutions collect location information by GPS attached without the consent from the person whose locational information is gathered from his/her body or possession. In addition, the court’s regulation should be required for the case that location information is tracked by GPS which is already attached. In this case, the degree of the regulation can be relaxed. When criminal justice institutions are tracing location information, a set of information on a person’s communication which contains telephone numbers that the person called and received, the frequency of calling, etc. can be provided on the permission from the court. This is interpreted that the Korean legal practice is more advanced than that of U.S. on this issue because Korea has its legal control on this matter. However, when judging whether the force used in investigation is reasonably acceptable to constitute its legitimacy or not, as the period of surveillance and the amount of information accumulated should be taken into consideration, the period of surveillance by mobile phones or GPS devices should be limited by law not to prolong the period unnecessarily. In private sector, the use of location information can be promoted in consideration of criminal justice policy, and some ways to protect individuals’ privacy, which might be violated during the course of using location information, can be suggested. First, the regulation for employers who do not deal with personal information should be eased, the ineffective way of notification improved, and the geo-based service industry promoted by advancing and standardising technology. Second, in order to protect the privacy of the individuals whose location information is collected, their right of consent should be specified, the right to delete location information stored admitted, and the ‘Monitoring System’ and ‘Authorisation System of Personal Information Protection’ actively promoted and used.
Next, RFID is defined as a system that operates through RFID tag attached to its subject, recognising information for identifying the subject and its surrounding information by using radio waves, thus collecting, storing, and processing the information on the subject, of which information is widely used in everyday life, including public transport pass such as underground and bus. RFID, characterised by its reliability on data processing, capability of recognising multiple tags simultaneously, mass memory storage, etc., is used in a variety of fields such as transport, distribution, medicine, traffic, environment, national defence, management, and tracking, etc. RFID can be extensively used in criminal justice system to prevent and solve crime such as immigration control (applying RFID technology to passport and ID card for preventing terrorism), tracking the condition of food storage and distribution, dealing with drugs and narcotics, securing valuables (art work and antique), preventing and arresting theft, and prison management. However, RFID technology has its opportunities and challenges at the same time. As it raises the issue of personal information protection and the violability of privacy, there should be appropriate responses to using the technology in criminal justice system. First, in relation to its regulation, the guideline should be modified in consideration of the changes in the current RFID technology and the reality of ‘Personal Data Protection Act’, and the regulation on the collection of personal information by RFID tag should be strengthened. In addition, improvements should be made for the current provisions to expand the subject of impact assessment on personal information, specify the regulation to combine personal information, systematise the law governing information protection, ensure the consistency between the criminal law and special law, and control RFID appropriately in criminal justice procedure. Furthermore, as it needs to seek an approach to making the improvements suggested above in the aspect of technology, an integrative approach to technology in general, including RFID, should be taken and its accompanying restrictions strictly imposed.
Whereas CCTV systems enable the cameras to watch a certain space, thus reducing the opportunistic structure in which crime occurs and, accordingly, preventing crime, there is scepticism on its reducing effect on crime because it is simply a displacement of crime rather than criminals abandoning their intention to commit crime. Apart from the controversy over the effectiveness of CCTV on crime prevention, the images collected from CCTV are admitted as important evidence in the course of investigation and the court. However, CCTV has brought an issue that the privacy of citizens is intruded to some extent and a ‘Big Brother’ society might emerge from the proliferated surveillance on everyday life, so in order to use CCTV in consideration of criminal justice policy there need to be legal and institutional modifications. First, as the Article 25 of Personal Information Protection Act regulates the installation and management of CCTV exclusively, the provision on the process and management of the images collected from CCTV should be established. In addition, the provision of punishment on violating the Article 25 should be modified and there should be pre-control and follow-up supervision which are legally and practically binding. The current guideline for the installation of CCTV should be improved to provide a more detailed and separated direction, and the installation and use of CCTV should be inspected and assessed by an independent body. Moreover, CCTV technology should be improved, such as enhanced images, to increase the admissibility and probationary power of CCTV images as evidence and a guideline should be provided for the court’s reference as well.
Lastly, although the technological advancement has created a variety of possibility in criminal justice, it is exclusively contingent on the legal system to decide whether to accept changes that occur outside the legal system through a filtration system or not. In other words, the most critical question in relation to advancing criminal justice is not technology itself, but the understanding of the law community on how to locate safety that can be ensured by technology and freedom that might be violated by technology. Therefore, the discussions over law and technology should be made actively in more consideration of the viewpoint of the public.