30/09/2024, 15:37 Open Net Welcomes the Constitutional Court’s nonconformity decision on warrantless subscriber data access but Anonymous Free Speech … users’ fundamental rights. The decision will unveil the pervasive extent of the government’s acquisition of private information as the law, if amended per this decision, will make user notification mandatory unlike before when access was revealed only upon users’ individual inquiries. Open Net welcomes this decision as privacy is a fundamental right for which procedural protection is as important as substantive protection, and the decision enhances the transparency of state surveillance. It is, however, regrettable that the decision found the access not compulsory and therefore the warrant requirement not applicable. If the access is not an exercise of binding state power, then the telecommunications business operators’ disclosure must be voluntary. In such a case, the disclosing operators must be legally responsible in cases where users’ privacy is infringed by that disclosure. However, the Supreme Court previously ruled that the operators’ disclosure is lawful as long as it mechanistically follows the statutory format and procedure in a user’s damage suit against the operators. Under that reasoning, citizens will not be able to hold anyone accountable for other rights infringement arising out of non-compulsory request of the government and voluntary cooperation of a private company whenever such cooperation is authorized. It means that Article 83-3 of the Telecommunications Business Act effectively carves subscriber identifying information out of the scope of privacy protection, and the Constitutional Court failed to deliberate on this substantive issue. The Constitutional Court also ruled that the provision of subscriber identifying information did not go against the principle of proportionality because the purpose was to facilitate the speed and efficiency of the investigation during its early stages and because the scope and cause of https://www.opennetkorea.org/en/wp/3710 3/7