You don’t have to be an U.N. special rapporteur to tell that freedom of opinion and expression in South Korea is severely oppressed.
I wrote about “South Korea’s Limited Freedom of Speech and Five Laws” before. But I admit he brought up another aspect of the problem.
20. Given the potential scope of government access, common forms of online anonymity may be “superficial and easily disturbed.” For example, reliance on pseudonyms or even widely available encryption tools (such as HTTPS websites that encrypt web traffic by default) may be insufficient. Users that have an urgent need to avoid discovery – particularly those who wish to express minority views or disclose sensitive information in the public interest – may be compelled to turn to sophisticated anonymizing software and tools, which can be technically complicated or cumbersome to use. Given the burden and risks involved, many may choose not to speak at all.
21. The mere prospect of government access to customer identity data may also deter individuals from expressing themselves freely in their private communications. As a result, the mere existence of a legal regime that facilitates government access to such data “creates an interference with privacy, with a potential chilling effect on rights, including those to free expression and association.” This chilling effect may have a disproportionate impact on attorney-client relationships, journalists and their sources, whistleblowers, human rights defenders, and minorities and vulnerable groups.
26. Warrantless government access to customer identity data violates the legality, necessity, and proportionality criteria set out above. Instead, such access should only be granted pursuant to legal criteria defined with sufficient precision, and an order by a competent and impartial judicial body certifying necessity and proportionality to achieve a legitimate objective. My analysis of relevant international jurisprudence and practice indicates that this view is shared by respected international and regional bodies and a growing number of States.
39. For the reasons identified above, I submit that Articles 83(3) and 83(4) of the TBA pose a grave risk to the freedom of expression of Internet and telecommunications users in the Republic of Korea. Articles 83(3) and 83(4) permit telecommunications operators to disclose customer identity data to select government authorities without a judicial warrant. Both the mere prospect of disclosure and the actual disclosures themselves interfere with anonymous expression and communication protected under Article 19(2) of the Covenant. An analysis of international law and practice indicates that the lack of judicial pre-authorization for government requests for customer identity data constitutes an unnecessary and disproportionate restriction under Article 19(3). The risk to freedom of expression is exacerbated by the reality that the Republic of Korea has among the highest number of user data requests per capita.