일방 당사자의 녹음 문제에 대한 미국 법제의 변화와 한국에의 시사점

초록

This paper examines how U.S. legal frameworks for wiretapping and eavesdropping are adapting to evolving social and technological landscapes and discusses their implications for South Korean law. While South Korean courts have historically permitted one-party consent recordings based on a narrow interpretation of “interception” in the Protection of Communications Secrets Act, recent legislative efforts have sought to restrict this practice in the name of privacy protection. These discussions often reference the U.S. legal system as a comparative model. In the U.S., federal and state laws collaboratively regulate communications surveillance. Although several states once required the consent of all parties to a conversation, this strict “all-party consent” model has been gradually relaxed through legislative amendments and judicial rulings. States like California and Florida, for example, have created statutory exceptions to allow victims—or their guardians—to record conversations without the perpetrator’s consent, particularly in cases involving sexual violence, domestic abuse, and child abuse. Furthermore, federal appellate courts are increasingly interpreting the right to record as an extension of First Amendment protections, which has effectively weakened blanket prohibitions on one-party recordings in certain states. These shifts demonstrate that privacy is not an absolute value but one that must be balanced against other rights, especially the need for criminal victims to collect evidence. The U.S. experience offers important insights for South Korea. It suggests a need to re-evaluate whether South Korea’s current legal framework adequately addresses the evidentiary needs of victims, especially in situations where a recording may be the only way to substantiate abuse or wrongdoing. This highlights the importance of a comprehensive approach that safeguards privacy while also ensuring victims’ rights and the integrity of the judicial process.

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