Supreme Court: "No Electronic Record Content Detection Crime Established Even If Information Is Extracted from a Laptop Without Password Setting"

Supreme Court, Seocho-dong, Seoul.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has ruled that even if someone uses a hacking program to obtain IDs and passwords for search sites from another person's computer, the crime of electronic record content detection under the Criminal Act does not apply if there are no separate security measures such as passwords installed on the computer.

The Supreme Court's 2nd Division (Presiding Justice Min Yoo-sook) announced on the 26th that it upheld the lower court's ruling, which acquitted some charges and sentenced Wang (35), who was indicted for electronic record content detection under the Criminal Act and information and communication network infringement under the Information and Communication Network Act, to 10 months in prison with a 2-year probation.

Wang, who worked in the management support team of a company in Paju, Gyeonggi Province, secretly installed a keylogger program on the laptop of his female colleague A (31) in August 2018, which captured all information entered via the keyboard.

From August 13 to September 12, 2018, Wang obtained A's NateOn, KakaoTalk, and Google IDs and passwords, and accessed A's accounts 40 times, downloading conversations, messages, photos, and other content exchanged with others.

The prosecution applied three criminal charges against Wang.

First, Wang was charged under Article 316(2) of the Criminal Act for electronic record content detection for secretly installing a hacking program on A's laptop and obtaining the IDs and passwords of each account.

Article 316 of the Criminal Act stipulates in paragraph 1 (violation of secrecy) that anyone who opens a sealed letter, document, or drawing with secret devices can be punished by imprisonment for up to three years, detention, or a fine of up to 5 million won. Paragraph 2 states that anyone who uses technical means to learn the contents of sealed letters, documents, drawings, or electronic records on special media shall be punished the same as in paragraph 1.

Additionally, the prosecution indicted Wang for electronic record content detection under the Criminal Act for accessing each account using the IDs and passwords obtained through the hacking program, and for information and communication network infringement under the Information and Communication Network Act for downloading conversation contents and photos from the accounts.

The first trial court found all three acts by Wang guilty and sentenced him to two years in prison.

The second trial court also found Wang guilty for accessing A's accounts and downloading conversation contents using the secretly obtained IDs and passwords.

However, the second trial court acquitted Wang of the act of installing the hacking program on A's laptop and obtaining the IDs and passwords, overturned the first trial's ruling, and reduced the sentence to 10 months in prison with a 2-year probation.

The court stated, "The crime of electronic record content detection under Article 316(2) of the Criminal Act punishes the act of using technical means to learn the contents of sealed letters, documents, drawings, or electronic records on special media. Here, 'electronic records on special media' refer to those recorded by electrical or magnetic signals."

It continued, "The Criminal Act treats the object of this crime as special media records, equating them to documents. Special media records differ from documents in that they are recorded by electrical or magnetic signals rather than characters or readable symbols. Therefore, to be the object of this crime, the record must be recorded similarly to documents and must express the intention of a specific person."

The court concluded, "Since account IDs and passwords themselves are difficult to consider as expressing the intention of a specific person, they cannot be regarded as special media records recorded by electrical or magnetic signals. Therefore, even if their contents were obtained using technical means, the crime of electronic record content detection does not apply."

However, the Supreme Court found this second trial judgment to be incorrect.

The court pointed out, "Considering the legislative intent of the amended Criminal Act, which newly established and added electronic records on special media as the object of the crime, the protected legal interest of electronic record content detection, the nature of the infringement, and its punishability, the IDs in this case are records stored electronically on the victim's laptop computer and correspond to 'electronic records on special media' under Article 316(2) of the Criminal Act." It added, "Therefore, the lower court's judgment excluding these IDs from electronic records solely because they do not express the intention of a specific person is incorrect."

However, the court clarified, "Since the crime of electronic record content detection punishes those who use technical means to learn the contents of sealed or otherwise secret electronic records on special media, even if the records correspond to electronic records on special media, if they are not sealed or otherwise secret, the crime does not apply even if their contents were obtained using technical means."

It further stated, "Although the lower court erred in reasoning that the object of Article 316(2) of the Criminal Act must express the intention of a specific person, the conclusion of acquitting the charges in this part is appropriate," thus dismissing the appeal.

Neither Wang nor the prosecution appealed the other two charges, so the second trial's guilty verdicts were finalized.