사인의 컴퓨터 해킹에 의한 증거수집과 증거배제법칙

• 영문명: A Study on the Admissibility of Evidence Obtained by a Private Hacker
• 발행기관: 한국형사법학회
• 저자명: 김종구(Kim, Jong-Goo)
• 간행물 정보: 『형사법연구』형사법연구 제21권 제3호, 291~314쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.01.30

영문 초록

In the United States v. Jarret, the hacker, who claimed to be from Istanbul, Turkey, gained entry to Jarret's computer who lived in the US through the use of a Trojan Horse program and found child pornography on Jarret's personal computer hard drives. After finding the pornography, the Turkish hacker contacted with the US law enforcement to inform them of the child pornographer, the defendant Jarret. The child pornography found by the Turkish hacker was admitted by the US court, and the defendant Jarret was convicted of producing and possessing child pornography. In the United States v. Jarret, the defendant Jarret claimed that the hacker's actions and his close relation with the FBI made the hacker the equivalent of a government agent. The defendant argued that searches conducted by the hacker should be covered under the Fourth Amendment, and the evidence obtained by the hacker should be excluded from the trial, based on the principle of agency. However, the Fourth Circuit Court of Appeals rejected Jarrett's claim that the hacker was a government agent subject to Fourth Amendment restrictions. The court asserted that mere acquiescence was insufficient, rather, the government must affirmatively support the search. A hacker can conduct efficient and anonymous electronic searches of vast amounts of information stored on personal computers. Consequently, personal computers are vulnerable to warrantless searches by private parties doing the work of law enforcement. In the digital era, the invasion of privacy on the internet by a private party could be more dangerous than the invasion of privacy by the government. Although, society must protect its children by ensuring that men like Jarret are imprisoned for many years, individuals are entitled to a reasonable expectation of privacy in their computer files. Thus the author of this article agrees with the argument that the traditional position of the US courts, applying the exclusionary rule only to governmental activity, is outdated and should be modified especially in the era of computer technology.

목차

Ⅰ. 머리말

Ⅱ. 미국 판례의 내용과 쟁점

Ⅲ. 증거배제법칙의 대사인적 효력

Ⅳ. 컴퓨터 과학기술의 발달과 증거배제법칙의 변화

Ⅴ. 맺음말

Abstract

키워드

위법수집증거배제법칙 프라이버시 해킹 사적 수색 사이버 범죄 디지털 증거 Exclusionary Rule Privacy Hacking Private Search Cybercrime Digital Evidence