행정의 정보활동과 영장주의

초록

With the advancement of science, technology, and artificial intelligence, the collection and analysis of vast amounts of digital information have become possible, thereby increasing the impact of information-gathering activities of the administration on individuals’ fundamental rights. Accordingly, expanding the scope of the warrant requirement has emerged as a major legal challenge. Traditionally, the warrant requirement has been applied to investigations involving “physical coercion,” such as those affecting the body or residence. However, new forms of information collection—such as communication records, CCTV footage, online information, and platform data—do not involve direct coercion, which has led to growing calls for extending the warrant requirement to such areas. In the United States, the Fourth Amendment serves as the constitutional basis for applying the warrant requirement even to administrative investigations, and its jurisprudence has evolved to address privacy infringements arising from new technologies. In Germany, information activities are regulated through the principle of “procedural protection of fundamental rights” and the doctrine of judicial reservation (Richtervorbehalt), requiring prior oversight by an independent authority for activities such as automated data analysis and online searches. The European Court of Human Rights emphasizes foreseeability, proportionality, and independent supervision in cases of mass surveillance, and in the Big Brother Watch judgment, it required independent ex ante and ex post review at each stage of surveillance. Furthermore, the EU Artificial Intelligence Act, as a rule, prohibits real-time facial recognition in public spaces, and when exceptionally permitted, mandates prior authorization by a judicial or independent administrative body. In Korea, the constitutional provision on warrants presupposes “the prosecutor’s request and the judge’s issuance,” and thus should be understood to apply solely to criminal procedures. For information-gathering activities of the administration, it is necessary to derive the Principle of the warrant requirement from separate constitutional foundations—namely, the principles of due process and proportionality. Under this framework, the warrant system can be tailored to reflect the particularities of information-gathering activities of the administration, allowing for the possibility that entities other than judges, such as independent agencies, may serve as the issuing authority for administrative warrants. Moreover, in determining the scope of the warrant requirement, it must be recognized that the warrant requirement is not the sole means of protecting fundamental rights against infringements arising from information activities. Legal control mechanisms over such activities can be structured in a stepwise manner according to the degree of potential infringement: (1) prohibition of information activities, (2) prior authorization (by a judge, an independent agency, or internal approval), (3) establishment of detailed statutory conditions, scope, and procedures without a prior authorization requirement, and (4) information activities conducted under existing legislation (subject only to protections under the Personal Information Protection Act and the Framework Act on Artificial Intelligence). The scope of the warrant requirement should thus be examined within this graduated structure. In particular, with respect to AI-driven information activities—especially automated data analysis, which enables the creation of new information beyond mere collection and thus poses greater risks to fundamental rights—it is necessary to determine whether procedural safeguards based on the warrant requirement (prior judicial or independent review) should apply before such activities are deployed.

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