언론의 자유와 통신비밀 - ‘안기부 X파일’ 사건과 미국연방대법원 판례와의 비교를 중심으로

Freedom of Speech and Communications Privacy ― Especially on the comparison between ‘NSP X-file’ scandal and the U.S. Supreme Court case ―

&nbsp;&nbsp;After the broadcasting media reported that the undisclosed voice-tapped conversation containing the political bribery between the high-ranking official of the conglomerate and the daily newspaper publisher had been surreptitiously recorded by the spy agency of the Agency for National Security Planning(NSP), so-called, the ‘NSP X-file’ has ignited the debate on the conflict between the freedom of speech and the communication privacy.<BR>&nbsp;&nbsp;Since the lower courts have come to differing conclusions about the alleged guilty of the accused reporter, it seems useful to compare and analyze the ‘NSP X-file’ with Bartnicki v. Vopper, the very important and similar case of the U.S. Supreme Court, before the final judgment of the Supreme Court of Korea on the alleged crime and the constitutional controversy.<BR>&nbsp;&nbsp;Despite the Seoul High Court(appeal court) decided that the accused violated, the Korean wiretap act, the Protection of Communications Secrets Act(PCSA), article 16 paragraph (1), subparagraph 2, it applies not to the person who did not “directly involved in the recording or eavesdropping” the conversation, but to the person who has disclosed or leaked the sub- stance of communications or conversations he has learned “in a manner referred to in subparagraph 1.”<BR>&nbsp;&nbsp;Assuming that it has the same text of the equivalent article of the ECPA, the U.S. federal wiretap act, it is reasonable to regard this problem as the limitation of the constitutional right other than the justification defenses. Because the government limits the constitutional right, the freedom of the speech, with the PCSA, the Court should review the constitutionality or validity of the article of the PCSA in light of the principle of the Article 37, paragraph (2) of the Korean Constitution. Therefore, it seems plausible to consider the following facts: (1) whether the disclosed private conversation with other parties was “legitimate public concern,” (2) whether the contents of the conversation was illegal, (3) whether the publisher of the conversation encouraged or participated directly or indirectly in the interception, (4) the degree of the reasonable expectation of communication privacy.<BR>&nbsp;&nbsp;In conclusion, the accused was not guilty since his report was not a crime proscribed in the PCSA. Furthermore, it seems the PCSA unconstitutional because of violating the essential aspects of the free speech. Therefore, it appears reasonable to revise the PCSA with newly inserting the justification defenses.