A move to legislate police use of GPS devices in criminal investigations has stagnated as police authorities have a negative stance about the legislation, while the Justice Ministry has been promoting discussions since the Supreme Court called for legislation that requires strict rules in a ruling in March last year.
Against the background of police authorities' negative attitude is their concern that discussion on the legislation of GPS investigations could spread to other investigative methods that operate without restrictions.
In March last year, the Supreme Court's Grand Bench handed down a ruling that the investigative method of attaching GPS devices to vehicles used by those under investigation without a court warrant was illegal.
The top court judged that the investigations using GPS devices were compulsory investigations that require court warrants, as the method infringes on important legal interests guaranteed by the Constitution. In the Criminal Procedure Code, there are no explicit provisions with regard to police investigations that use GPS devices. The ruling called for legislation, saying that "it is desirable for new legislation that pays attention to the characteristics of GPS investigations to be enacted."
GPS investigations have been effective mainly in systematic serial theft cases and serial arson cases. However, in response to the top court's ruling, the National Police Agency instructed police headquarters nationwide to refrain from using GPS devices in criminal investigations. Unless a law that establishes procedures for investigations is enacted, such as the law on wiretapping, it would become effectively impossible to conduct investigations with GPS devices.
The ministry has started discussions on legislation. However, there appeared to be a clear difference in the attitude toward the legislation between the ministry and police authorities. A senior police official flatly said, "There is no merit in continuing GPS investigations, even with the legislation of the GPS investigation."
GPS investigations are effective because those under investigation are not aware that the devices are being used to track them. The public was unaware of the use of GPS investigations until the top court's ruling. Some criminal groups have used devices to prevent police pursuits by jamming signals.
Police authorities are steadily taking alternative steps, such as by examining images of security cameras more closely than before. The crime clearance rate has not decreased greatly so far, according to sources.
The police are also concerned about the current move to legislate GPS investigations potentially spreading to other investigative methods. Police authorities have compiled a database for DNA analysis results to make use of them for investigations, but there are no laws to institute the procedures.
A senior official of police investigative authorities said, "If GPS investigations are legislated, other investigative methods that have operated without restrictions could be subject to the provision."
On the other hand, the ministry is pinning high hopes on a new investigative method with state-of-the-art technology being established by the legislation of GPS investigations.
A senior ministry official said: "Security cameras have drastically changed conventional investigative methods. GPS devices have almost the same power."
The ministry is considering establishing a law in the future to make it possible to obtain positional information from the smartphones of those under investigation without their consent through remote control by investigative organizations at the discretion of these organizations.
The ministry initially considered consulting the Legislative Council, an advisory panel to the justice minister, in February this year at the earliest, but it is unknown when the council will be consulted.
The senior ministry official said, "[The ministry] will continue to discuss the issue, but it is difficult to legislate [GPS investigations] as police take a stance that [legislation] is 'not necessary.'"
Common overseas
Some developed overseas countries have legal systems for GPS investigations, in which crimes and the length of GPS investigations are clearly defined.
In France, the GPS investigation law, which was enacted in 2014, stipulates that police can take every possible necessary measure to determine the location of individuals and vehicles without obtaining consent from those under investigation or the owners of vehicles.
The law says it is applied to crimes that can result in at least five years in prison, or crimes of at least three years in prison that take the lives of others or injure another person. The law can be applied for investigations that run for up to 15 days if prosecutors give their approval to GPS investigations. Court approval is necessary to continue investigations for more than 15 days.
In Germany, the criminal procedure code stipulates procedures for GPS investigations. A GPS investigation that takes more than 24 hours, or at least two days, to obtain location information is regarded as a long-term monitoring investigation and needs a judge's order, in principle. The target crimes are those considered serious crimes, and the code stipulates that location information that is obtained should be kept by prosecutors.
"It is common in developed countries to give legitimacy to an investigation by legislating the method," said Makoto Ibusuki, a professor of criminal procedure law at Seijo University, who is well versed in the overseas use of GPS investigations. "Japan should legislate [GPS investigations] as early as possible to respect the top court's ruling and protect the privacy of the public."
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