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Court’s GPS ruling prioritizes privacy

The Yomiuri Shimbun

The Supreme Court’s Grand Bench ruled Wednesday that police use of GPS devices without a court warrant in criminal investigations is illegal.

By Yuri Ishihama and Toshiyuki Yoshida / Yomiuri Shimbun Staff Writers The Supreme Court’s ruling that police use of GPS devices without a court warrant in criminal investigations is illegal showed a strong commitment to safeguarding privacy and upholding the Constitution’s article stipulating the principle of a warrant to guarantee the protection of human rights. However, investigations using GPS devices will seemingly become impossible to be conducted unless new laws are established, which could impede efforts to uncover and track down organized crime committed by gangs of robbers and other criminals.

The most distinctive element of Wednesday’s ruling by the top court’s Grand Bench was its consideration of investigations using GPS devices without warrants as a constitutional issue. Article 35 of the Constitution, which spells out the principle of warrant, states: “The right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause.” This is intended to prevent investigations that significantly violate an individual’s interests and rights.

An investigation using GPS devices differs considerably from stakeouts and tailing because investigators can continually glean accurate location information, including when an individual is at a place where their privacy must be strongly protected, such as at home or a hospital.

Based on this distinction, the court pointed out that GPS use in investigations “invades the private sphere by public power.” This was the first time the top court decided the rights guaranteed by Article 35 included the “right not to have one’s private sphere invaded.” The court concluded that investigations using GPS constituted “compulsory investigations” that require a warrant.

Until now, whenever a new technology that raises serious privacy concerns — such as wiretapping or X-ray inspections — is used as an investigation method, the Supreme Court has been pressed to provide a new interpretation and decide whether it must be categorized as a compulsory investigation, or an investigation “on a voluntary basis,” which does not require a warrant. Wednesday’s ruling, which emphasized the constitutional requirement for a warrant, can be considered to have taken a view that technological advances will continue to emerge in investigation methods.

In what is a major blow to investigative authorities, the ruling has also effectively blocked investigations for which a warrant has already been obtained.

During its argument in February, the prosecution detailed cases in which the police had obtained warrants and conducted investigations using GPS devices. This was to emphasize police “could deal with these cases” by acquiring a warrant.

Investigative authorities submit an application for a warrant to a judge, who examines the case and issues the warrant if they recognize it is necessary and relevant to investigating the alleged crime. However, the current Criminal Procedure Code contains no specific mention of investigations that use GPS devices.

Section 1 of the code’s Article 197 states a legal basis is necessary for a compulsory investigation. Based on this article, the individual justices involved in this ruling could not fully decide on the propriety of investigations using GPS devices given their vague legal position, and urged that a new law be enacted. A role that conventionally should be fulfilled by the justices has instead become a decision entrusted to the legislative branch of government.

A pressing problem now is how investigations will be conducted in the foreseeable future.

In a supplementary opinion, three justices including Kiyoko Okabe wrote that carrying out investigations using GPS devices “should not be completely rejected until the time that appropriate legal measures are put in place.” This appears to have left some room for such investigations to be conducted.

However, high hurdles remain ahead. The supplementary opinion touched on the spirit espoused by Article 1 of the Criminal Procedure Code, which guarantees the fundamental human rights of individuals, and stated the use of GPS devices should be restricted to cases such as the investigation of extremely serious crimes and in which they were highly necessary.

“One could assume this would refer to cases such as abductions in which there was imminent danger to human life, but under what conditions a warrant could be issued remains vague,” said Daisuke Midori, an associate professor at Hitotsubashi University and an expert on the Criminal Procedure Code.

Designing any new law also will be tricky. The ruling indicated three key issues will need to be considered: the period for which a GPS device will be used; the presence of a third party; and notifying the subject after the fact. In Germany, the criminal procedure law spells out the procedures for conducting an investigation using GPS devices. It also restricts the length of time during which location information can be acquired without the involvement of a court, and states such an investigation can be conducted based on a decision by a public prosecutor in an emergency. Germany’s framework could be a useful reference for Japan.Speech

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