Opinion Calling for Making Changes to Protect People’s Privacy Regarding the Amendment of the Code of Criminal Procedure and Other Related Acts, Including Introducing a System to Order the Provision of Digital Records
March 14, 2024
Japan Federation of Bar Associations
The Japan Federation of Bar Associations (the “JFBA”) compiled its “Opinion Calling for Making Changes to Protect People’s Privacy Regarding the Amendment of the Code of Criminal Procedure and Other Related Acts, Including Introducing a System to Order the Provision of Digital Records” dated March 14, 2024, and submitted it to the Minister of Justice on March 15, 2024.
Summary of Opinion
With regard to the amendment of the Code of Criminal Procedure and other related acts to improve criminal laws and procedures and thereby address matters including advances in information and communication technology, the following changes should be made regarding the collection of digital records by investigative authorities in order to protect citizens’ rights, including their right to privacy.
1. With regard to receiving provided digital records or seizure of recording media containing such records, explicitly state that special attention must be paid so as to avoid collecting personal information which is not relevant to the case charged to the court or the suspect’s case as much as possible, in view of the need to protect personal information in our modern digital society.
2. Ensure that citizens whose information is obtained by an authority are provided an opportunity to file a complaint, by way of the following:
(1) When digital records are received or recording media containing such records are seized from a person who is entrusted by an individual to hold such records, the individual must be issued a notification of such provision or seizure, along with a list of the items of information provided or seized; and
(2) As for an order that prohibits disclosure of having received the order to provide digital records, as well as disclosure on whether or not such records were provided, the period during which disclosure is prohibited must be legally limited.
3. Ensure that illegally collected information is deleted, by way of the following:
(1) If an order to provide digital records is revoked, the digital records created based on such order must be deleted, any transferred records must be returned to the individual or entity that received the order, and all copies of such records must be deleted; and
(2) If a seizure order for recording media is revoked, all copies of digital records obtained from the seized media must be deleted.
4. Make it possible to file a request for the deletion of digital records that contain personal information not relevant to the case charged to the court or the suspect’s case.
5. Based on the privilege against self-incrimination which is protected under Article 38 of the Constitution:
(1) Explicitly state that individuals will not be punished for refusing to provide digital records on the ground that doing so may result in making a self-incriminating statement; and
(2) Require that, when executing an order to provide digital records, those receiving the order must be informed that the order does not require them to make a statement against their will.
6. Establish an independent supervisory body to ensure the proper handling of personal information by investigative authorities, including provisions setting forth the purposes of use, retention period and deletion of such personal information.
