execution of the communication-restriction measures. Therefore, there is
possibility that State investigative agencies may abuse their power to
collect information about a specific person, including his or her
whereabouts.
There are a number of legislative cases in other countries that allow
State investigative agencies to intercept Internet lines or other similar
wiretapping for investigative purposes while setting out procedures that
regulate the use of data acquired through such interception in order to
minimize infringement on fundamental rights, such as: the requirement
for submission of periodic reports on the progress of interception to the
court after the execution; the requirement for submission of sealed data
on interception to the judge who authorized such interception; and the
judge’s decision over the preservation and destruction of the data
obtained through interception.
In light of the above, the Instant Provision does not satisfy the
principle of least infringement, since it specifies interception of Internet
lines as one of the communication-restriction measures merely on the
ground that such interception serves criminal investigative purposes,
although no legal safeguards are in place to prevent the abuse of power
and to minimize infringement on the fundamental rights by State
investigative agencies during and after the execution of such interception.
Moreover, the balance is not deemed to have been struck between the
public interest to be attained by the Instant Provision and the private
interests to be infringed by the Instant Provision, since authorizing the
interception of Internet lines would pose a serious threat to the secrecy
and freedom of communications and privacy of individuals.
Accordingly, the Instant Provision violates the rule against excessive
restriction and thus infringes on the fundamental rights of the Complainant.
4. Conclusion
Although the Instant Provision violates the Constitution by infringing
on the fundamental rights of the Complainant, the issuance of a decision
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