II. Surveillance policy
State security services have a history of conducting surveillance of political dissidents. The Korean Government designed the Protection of Communications Secrets Act of 1993 and the reform of the NIS to curb government surveillance of civilians.
The Protection of Communications Secrets Act lays out broad conditions under which the monitoring of telephone calls, mail, and other forms of communication is legal.1 This Act requires government officials to secure a judge's permission before placing wiretaps, or, in the event of an emergency, soon after placing them. The Act also provides jail terms for persons who violate this law. Some human rights groups argue that a considerable amount of illegal wiretapping, shadowing, and surveillance photography still occurs, and they assert that the lack of an independent body to investigate whether police have employed illegal wiretaps hinders the effectiveness of the Anti-Wiretap Law.2
In June 2007, revisions to the Protection of Communications Secrets Act passed the National Assembly's Legal and Judiciary Committee. The revisions would require mobile phone service providers, credit card firms and mass transit operators to store clients‚Äô records for up to a year and provide the information at the request of state investigators. This means a citizen's cellular phone calls, e-mails, financial transactions and even where he or she goes on buses and subways over the past year must be kept and disclosed upon a warrant request.3
The Anti-Wiretap Law sets out "broad conditions under which the government may monitor telephone calls, mail, and other forms of communication, for up to two months in criminal investigations and four months in national security cases."4 Some human rights groups raised concerns about possible government wiretapping abuse. The Ministry of Information and Communication said that between January and June of 2006, the government conducted 528 cases of wiretapping, down 11 percent from the 550 cases during the same time period in 2005. Telecommunications companies also reported providing more than 35 percent fewer phone records to law enforcement agencies when compared with last year.5
South Koreans have long had to live with widespread surveillance and wiretapping abuses by intelligence and police officials under successive regimes. In October 1998, President Kim Dae-Jung ordered a full-scale probe into illegal wiretapping. Rep. Hyong-Oh Kim of the opposition GNP stated that he believed that over 10,000 taps were actually placed in 1998.6 The government proposed amendments to the Protection of Communications Secrets Act in November 1999 that would allow victims of illegal wiretapping to sue in court, limit the number of crimes for which wiretapping is allowed, and provide for notice to targets of wiretapping. The government set up a wiretapping complaint center under the MIC in October 1999.7 The UNHRC heard testimony on Korean wiretapping at its meeting in October 1999.8
According to the opposition GNP, public prosecutors, police and many governmental bodies, such as the SPPO, the National Police Agency (NPA), the National Tax Administration (NTA), the Financial Supervisory Service (FSS), the Financial Intelligence Unit (FIU), the Fair Trade Commission (FTC) and the Central Election Management Committee (CEMC), are not only indiscriminately monitoring bank accounts, but there has also been a sharp rise of wiretapping incidents by investigating authorities, with a high risks to infringement of human rights.9 Furthermore "a considerable number of these surveillances have been carried out without proper legal procedures such as obtaining a warrant or the consent of the individual concerned, but simply at the convenience of the investigating authorities."10
According to an MIC report, the number of location-tracking services furnished by mobile phone service providers to state investigation agencies in 2004 has significantly increased over those in 2003.11 Government authorities such as the NPA and the NIS tracked mobile phone users in 16,497 instances just during the first half of 2004.12 The total number of cases was 20,773 in 2003, a 62.3 percent increase over the 12,184 cases in 2002.13
Through material submitted by the Ministry of Finance and Economy (MOFE) and other agencies to the National Assembly, it was also discovered that even in non-emergency cases, which only require the senior prosecutor's consent - rather than a court approval - public prosecutors obtained telecommunications records by breaking the rule in 40 percent of the cases.14 There were 124,893 cases of disclosures of telecommunications data, an increase of 24.3 percent compared to the same period in 2003.15
South Korean courts routinely accept recordings, or transcripts of recordings, as admissible evidence in both civil and criminal proceedings. The Supreme Court ruled in October 2002 that it is not illegal for a party to a phone call to record the phone conversation secretly without the other party's knowledge, although the recording of a phone conversation by a third party without the consent of both parties to the phone call is illegal.16 In August 2004, the Seoul Central District Court ruled that it was not illegal for a journalist to publish a recording that he made of a phone conversation without the other person's consent.17
Unauthorized phone taps - through the illegal use of interception equipment and radio frequency devices - have also been increasing at an alarming rate.18 Despite rising public awareness over violations of privacy, in 2005, the Ministry of Justice (MOJ) has been pushing a controversial new law that grants government authorities greater freedom to gather evidence through phone taps by requiring landline and wireless telephone companies to implement new surveillance technologies.19 The MOJ is in discussions with the MIC and expects to complete the law by August 2005.20
South Korea has one of the world's highest concentrations of mobile-phone users. As the quality of photos taken by phone cameras improves, there is rising concern about possible privacy abuses. In November 2003, the MIC introduced regulations to protect against the surreptitious taking of photos in public areas such as locker rooms and swimming pools. Starting in 2004, mobile phone manufacturers are required to design camera-enabled mobile phones to make "camera shutter" sounds, of at least 64 decibels, when a picture is taken.21 The Korea Times reported that the MIC was drafting a new bill to prohibit individuals from taking photographs of others using camera phones without prior consent.22
According to the US State Department, it was "difficult to estimate the number of political prisoners because it was not clear whether particular persons were arrested for exercising the right of free speech or association, or were detained for committing acts of violence or espionage."23 Amnesty International reports that the Korean government continued to require released political prisoners to report regularly to the police under the Social Surveillance Law.24
Under the National Security Law, it is forbidden for South Koreans to listen to North Korean radio in their homes or read books published in North Korea if the government determines that they are doing so to help North Korea. However, in 1999 the government made it legal for South Koreans to view North Korean satellite telecasts in their private homes. The government also allows the personal perusal of North Korean books, music, television programs, and movies as a means to promote understanding and reconciliation with North Korea. Student groups make credible claims that government informants are posted on university campuses.25
The Use and Protection of Credit Information Act of 1995 protects credit reports.26 In July 2001, three large credit card companies were fined under this law. The companies were found to have disclosed personal information on their customers (including bank account numbers, pay levels and credit card transaction records, and customer identifiers such as names, addresses, phone numbers and resident-registration numbers) to insurance companies without giving notice to their customers or obtaining their consent in advance.27 The Postal Services Act protects postal privacy.28
Since January 2002, Korea has maintained a DNA database of missing children.29 Registry in the database is voluntary, and it is available to parents and children in orphanages.30 The Supreme Public Prosecutor's Office (SPPO) analyzes the samples, and the information is stored in a database maintained by Biogrand, a private company.31 Privacy advocates are concerned that the SPPO, an office engaged in criminal prosecutions, collects the DNA samples.32 The SPPO maintains that they do not have access to personally identifiable information aside from age and sex when they receive a DNA sample, and that the database's use is strictly for family relationships.33 Privacy advocates are nevertheless wary because there are no specific laws that address DNA information.34 As such, there is the potential for abuse and extending the database's function.
On April 19, 2005, it was asserted during a National Assembly session that the MIC "had purchased private information of fingerprints and facial skeletal features without a clear-cut legal basis."35 Rep. Hae-Suk Suh of the Uri Party argued: "Over two years since 2002, the MIC has spent [KRW] 2.8 billion to establish a database on vital information of 5,620 people including minors. . . . The government continues to amass personal identification data on the grounds that it is useful for the commercialization of biometrics."36 The MIC admitted that its affiliate, the Korea Information Security Agency (KISA), has "carried out the collection of 3,600 fingerprints and 2,020 facial skeletal features," but denied any wrongdoing, pointing out that the Act on Promotion of Information and Communications Network Utilization and Data Protection (DPA) stipulates that "the MIC can ferret out measures for protection of individual information together with the KISA."37
- 1. Act No. 4650.
- 2. http://www.state.gov/g/drl/rls/hrrpt/2004/41647.htm
- 3. http://www.koreatimes.co.kr/www/news/opinon/opi_view.asp?newsIdx=5375&ca...
- 4. US State Department Human Rights Report 2006 - South Korea, supra.
- 5. Id.
- 6. "Kim Hyong-o Says more than 10,000 May Be Exposed to Gov't Taps," Korea Times, February 13, 1999.
- 7. "Government to Operate Eavesdropping Complaint Center," Korea Herald, October 30, 1999.
- 8. United Nations Human Rights Committee, Summary record of the 1,792nd meeting: Republic of Korea. 22/11/99. CCPR/C/SR.1792, (November 22, 1999).
- 9. http://news.naver.com/news/read.php?mode=LSD&office_id=009&article_id=00...§ion_id=101&menu_id=101
- 10. Id.
- 11. http://news.naver.com/news/read.php?mode=LSD&office_id=040&article_id=00...§ion_id=108&menu_id=108
- 12. Id.
- 13. Id.
- 14. "Sharp Rise in Tappings of Mobile Phone Text Messages and Voice Mailboxes by Government Investigative Agencies," JoongAng Daily, November 24, 2004.
- 15. http://news.naver.com/news/read.php?mode=LSD&office_id=009&article_id=00...§ion_id=101&menu_id=101
- 16. http://news.naver.com/news/read.php?mode=LSD&office_id=005&article_id=00...§ion_id=102&menu_id=102
- 17. http://news.naver.com/news/read.php?mode=LSD&office_id=018&article_id=00...§ion_id=102&menu_id=102
- 18. http://www.koreaherald.co.kr/archives/result_contents.asp?id=20050615004...
- 19. http://www.koreaherald.co.kr/archives/result_contents.asp?id=20050615004...
- 20. Id.
- 21. "Phone Camera Makers Are Told to Use 'Click' to Protect Privacy," JoongAng Daily, November 12, 2003.
- 22. "Camera Phone to Require Shutter Sound from Next Year," Korea Times, November 11, 2003.
- 23. http://www.state.gov/g/drl/rls/hrrpt/2004/41647.htm
- 24. http://www.web.amnesty.org/ai.nsf/index/ASA250181998
- 25. US Department of State, Country Report on Human Rights Practices - South Korea 2003.
- 26. No. 4866, Enforcement Decree for the Act Relating to Use and Protection of Credit Information.
- 27. "Stricter Privacy Protection," Korea Herald, July 19, 2001.
- 28. Act No. 542, last amended by Act No. 6196, January 21, 2000.
- 29. E-mail from Kim Nak ho, Department of Communications, Soul National University to Waseem Karim, Law Clerk, Electronic Privacy Information Center (EPIC), July 5, 2002 (on file with EPIC).
- 30. Id.
- 31. Id.
- 32. Id.
- 33. Id.
- 34. Id.
- 35. http://news.naver.com/news/read.php?mode=LSD&office_id=040&article_id=00...§ion_id=108&menu_id=108
- 36. Id.
- 37. Id.