PD Notebook indictment generates email search and seizure controversy

Posted on : 2009-06-20 11:22 KST Modified on : 2009-06-20 11:22 KST
Writer files suit against prosecutors for violating Communications Privacy Act, while some legal scholars say prosecutors’ methods suppress freedom of thought
 a writer for MBC “PD Notebook” documentary program files charges of dereliction of duty and defamation Friday against the prosecutors who disclosed the personal content of her e-mails.
a writer for MBC “PD Notebook” documentary program files charges of dereliction of duty and defamation Friday against the prosecutors who disclosed the personal content of her e-mails.

Objections are growing against the decision of the Public Prosecutor’s Office to disclose the content of three personal e-mails by Kim Eun-hee, age 38 and a writer for the MBC documentary program “PD Notebook,” in the indictment of five producers and writers for the show Thursday. Some legal observers are commenting that this situation poses an opportunity to remedy law enforcement’s practice of engaging in a search and seizure of e-mails, a practice that has been used haphazardly and without any clear regulation.

One of the biggest problems legal observers have been pointing to in law enforcement’s practice of e-mail search and seizures is its excessive scope. Currently, investigators can give a portal site the resident registration number of the person under investigation and ask that the site disclose all e-mail content accumulated in the account since the sign-up date. A representative case occurred last year when prosecutors collected seven years worth of e-mails from Jou Kyung-bok during an investigation of possible violations of South Korea’s campaign finance laws during last year’s elections race for the superintendent of the Seoul Metropolitan Office of Education seat.

“Investigating bodies normally specify they want 10 percent to 20 percent, and since they do not indicate if they are looking email that has been sent, received or deleted, we have no choice but to turn over everything,” said an employee of Daum Communications who appeared as a witness in Jou’s trial on June 4.

In a rapidly changing communications environment, e-mail search and seizure has the same effect as after-the-fact eavesdropping, and the problem is that related regulations have not been able to catch up with this reality. “Investigative bodies consider e-mail search and seizure in the same vein as going to someone’s house or office and taking their mail,” said a senior prosecutor with the Supreme Prosecutor’s Office. “But there is a different content aspect to today’s e-mail when compared to mail seized in the past, in that it can contain material pertaining to private areas of personal life,” the prosecutor added.

This view regarding personal information is supported by the fact that e-mail was ultimately responsible for bringing the relationship between Shin Jeong-ah and former presidential aide Byeong Yang-kyoon to light. “Just as law enforcement investigates phone records and text messages on a regular basis, the trend is that e-mail is becoming increasingly significant to investigations,” the senior prosecutor added. Some observers are also commenting that this atmosphere is aided by the courts, which issue warrants to prosecutors for comprehensive email search and seizures without parameters.

Another problem has been noted when the collected e-mail is revealed to outside parties according to the needs of investigators. In their search and seizure of Kim’s e-mails, the team of prosecutors investigating the PD Notebook case received message for a period of seven months spanning from January to July 2008. Although this is not an indiscriminate period of time, Kim has said, “Prosecutors asked a lot of questions about my private life, and that would be difficult to do unless they have already looked into it.”

Hwang Hui-seok, an attorney with MINBYUN-Lawyers for a Democratic Society, says, “Disclosing e-mails content in itself is a violation of the Communications Privacy Act and as a result, we find ourselves in a difficult situation where prosecutors are breaking the law and we will have to accuse them and ask that they be punished.”

Korea University Professor Park Kyung-shin says, “They have suppressed freedom of thought by placing information unrelated to the investigation in with the charges.”

Some politicians are joining in the push to resolve this problem. Democratic Party Lawmaker Park Young-sun, who spearheaded an amendment to the Protection of Communication Secrets Act on June 4 requiring investigators who search and seize an individual’s e-mail to notify that person of the fact within 30 days of the investigation’s close, announced that when the June extraordinary session of the National Assembly meets, she plans to push for an amendment to the Criminal Procedure Law stating that investigators must specify a time period when applying for a search and seizure warrant for e-mails.

Meanwhile, Kim Eun-hee filed charges of dereliction of duty and defamation Friday against the prosecutors who disclosed the content of her e-mails. The charges are against Jeong Byeong-du, a senior prosecutor at the Seoul Central District Prosecutor’s Office; Jeon Hyeon-jun, head of the office’s Second Detective Division; and prosecutors Park Gil-bae, Kim Gyeong-su and Song Gyeong-ho. She also filed charges against Chosun Ilbo president Bang Sang-hoon for defaming her character in an editorial entitled “PD Notebook Writer, Fanatical with Hostility towards Lee Myung-bak.”

Please direct questions or comments to [englishhani@hani.co.kr]

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