Editorial: Can Japan protect privacy under law ordering digital data provision?
TOKYO -- Japan has enacted revisions to the Code of Criminal Procedure and other legislation aimed at digitizing criminal justice procedures, yet concerns remain that citizens' privacy may be unjustly infringed upon in the name of criminal investigations.
With the enactment of the revisions, search and seizure warrants can now be requested and issued online, enhancing the efficiency of investigations. A new system also allows investigative authorities to order the provision of electronic data with a court warrant. Online "seizure" is now possible, and failure to comply with such orders may result in penalties.
It is anticipated that providers and cloud service operators will be asked to provide information including communication histories and server access records. There could also conceivably be cases in which acquaintances of investigation targets are required to submit their exchanges via communication apps.
During the Diet deliberations, a key issue raised was the risk of collecting more personal information than necessary, as businesses or other parties fearing criminal liability may provide information not directly related to a crime.
There are no rules requiring authorities to notify targets of investigations when information provision orders are issued to businesses or other parties. Regulations have also been established, with penalties, to keep the provision of information confidential. Both measures are intended to prevent the destruction of evidence.
However, there is a risk of people's privacy being infringed on without their knowledge. Even if improper data collection is later revealed, investigative authorities are not obligated to delete the information.
There are additional potential restrictions on the rights of investigation targets.
If information stored on smartphones or computers is protected with a password, investigative authorities cannot force a person to reveal it. But under the new system, they can order the person to unlock the password and provide the information, with penalties for noncompliance.
It has been pointed out that this may conflict with the constitutional guarantee that people shall not be compelled to testify against themselves.
Courts play a crucial role in preventing the arbitrary collection of information. Strict scrutiny is required to ensure that such orders are limited to the scope necessary for investigations.
In the European Union, where the protection of personal information is stringent, an independent supervisory body has been established to ensure unnecessary data is deleted by criminal justice authorities. Japan should consider adopting a similar approach.
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