Inside GNSS Media & Research

NOV-DEC 2018

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26 InsideGNSS N O V E M B E R / D E C E M B E R 2 0 1 8 disposition that is not permitted under the Criminal Procedure Code without special statutory grounds and, therefore, not permitted to be conducted without a warrant. e Supreme Court then considered the possibility of conducting the GPS investigation by acquiring a warrant under the current Criminal Procedure Code but denied such a possibility. It concluded that there is no type of war- rants under current Japanese laws suit- able for GPS investigations and that, therefore, a new k ind of warrant is needed for such investigations. According to the Court, while GPS investigation is similar to the "inspec- tion" under Criminal Procedure Code in that it involves reading of the data from the information device on the screen, it is difficult to deny that GPS investiga- tion also has a feature that cannot be covered by the "inspection." The lat- ter feature becomes apparent in that assuming that an inspection permit is required to conduct GPS investigation, the inspection permit specifies only the vehicle to which a GPS terminal should be attached and the charge, which is not sufficient to prevent excessive monitor- ing of the vehicle user's activities that are irrelevant to the alleged facts, as GPS investigation inevitably involves the continuous, comprehensive monitoring of the target vehicle user's activities. e Court further noted that while in the case of a warrant under the current Criminal Procedure Code the warrant must be shown to the person who is to undergo the measure to ensure due pro- cess in principle, such a step is uncon- ceivable, given that the GPS investiga- tion would be meaningless unless it is conducted without being known to the suspect. Having such holding, the Supreme Court pointed out that the due process suitable for the GPS investigation be bet- ter determined by the legislation and not le to judicial interpretation of an existing statute, as the latter approach would end up in the judges' discretion on a case-by-case basis and not be in line with the intention of the proviso to para- graph (1) of Article 197 of the Criminal Procedure Code, which provides, "com- pulsory dispositions shall not be applied unless special provisions have been estab- lished in this Code." In conclusion, the Supreme Court opined that it is desirable that a new law that will conform to the principles of the Constitution and the Criminal Pro- cedure Code be enacted, reflecting the features of GPS investigation. The Analysis of the Supreme Court Decision: Comparisons with the "Mosaic Theory" In comparison with the U.S. decision, a similar issue happened regarding Issue 1. In the U.S., the issue is whether obtain- ing positional information through GPS investigation is an invasion of the right, which is "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures", protected under the Fourth Amendment of U.S. Consti- tution or not. If GPS investigation is an invasion of the right, the investigation is needed a warrant in general. is issue is similar to Issue 1 mentioned earlier. As previously described, the reason- ing of Japan's Supreme Court decision is divided into two parts. e first part notes that "a method of investigation inevitably involves the continuous, com- prehensive monitoring of the person's activities". The second part finds that "a method of investigation that invades a person's private sphere by attaching devices that enable personal privacy inva- sion to the person's property." Both of the reasons are referred in the Supreme Court's decision in United States v. Jones (United States v. Jones, 132 S.Ct. 945 (2012)). e latter is same reason as majority opinion referred in Jones. On the other hand, the former seems to be similar to the "mosaic theo- ry" referred by concurring and dissent- ing opinions in Jones. "Mosaic theory" means "continuous government collec- tion of information about an individual could infringe on the person's reason- able expectation of privacy." Applying this theory on the matter of GPS inves- tigation, obtaining positional informa- tion on public roads continuously and comprehensively through GPS investiga- tion has the possibility to disclose one's private affairs, like religious activities and political activities. e Japanese Supreme Court deci- sion, in particular the second part of its reasoning, appears to be the same as the mosaic theory. However, some com- mentators doubt that it is. is is because the full acceptance of the mosaic theory could render illegal the traditional shad- owing and stakeouts to collect positional information on public streets for a long term as disclosing one's private affairs. Furthermore, it should be unclear to what extent of volume or term the posi- tional information may be collected if the mosaic theory were to be adopted. Given these doubts about the mosaic theory, some commentators read the Japanese Supreme Court decision as not concerned about "the continuous, comprehensive monitoring of the person's activities" as such, but based its decision on the fact that the positional informa- tion relating to "places and spaces where personal privacy should be strongly pro- tected" could be involved in the process of collecting positional information con- tinuously and comprehensively. Conclusion e legality of GPS investigation is a com- mon issue worldwide and national legal systems and courts have different views with regard to the nature and legality of GPS investigations. Discussions about the issue in U.S. and Europe have been intro- duced in Japan and affected the Japanese Supreme Court's decision. However, the decision does not provide a comprehen- sive solution to the problem of GPS inves- tigations since the judgment leaves much room for interpretations. This unclear conclusion is due to the fact that the nature of GPS investigations does not fit Issue1 Issue2 Interpretation Court of first instance Need Inspection permit Illegal Court of prior instance Not need Legal Supreme Court Need New kind of warrant Illegal Table 1. A summary of the relevant decisions. GNSS & THE LAW

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