In December 2016, ARTICLE 19 submitted an amicus brief to the Constitutional Court of the Republic of Korea (Korea) in a case concerning mass surveillance under provisions of theTelecommunications Business Act.
ARTICLE 19 believes that this case raises critical issues which fundamentally affect the extent to which the Korean legislation provides meaningful protection to individuals in the exercise of their freedom of expression and privacy rights. We are aware of the reports that communication surveillance is taking place in Korea at an alarming rate. It has been reported that in 2011 alone, communication metadata were seized for 37.3 million communication facilities – phone numbers, e-mail addresses or other accounts – and subscriber-identifying information was seized for 5.84 million facilities.It is our understanding that the current legal framework allows for law enforcement to obtain much of these data without a warrant. Moreover, linking “anonymous” metadata with individual user identities can easily be done under the Telecommunications Business Act.
According to the UN High Commissioner for Human Rights “even the mere possibility of communications information being captured creates an interference with privacy, with a potential chilling effect on rights, including those to free expression and association. The very existence of a mass surveillance programme thus creates an interference with privacy.”
To assist the Court in the case, this brief addresses three key areas:
a) Surveillance and the rights to freedom of expression and privacy under international human rights law;
b) Compliance of Articles 83(3) and 83(4) of the Telecommunications Business Act with the international standards on the right to freedom of expression; and
c) Compliance of Articles 83(3) and 83(4) of the Telecommunications Business Act with the international standards on the right to privacy.