Court rulings are split over the GPS (=ground positioning system) tracking by law enforcement authorities; the first says lawful, while the other judgment says unlawful. The point is whether police can hunt a suspect by attaching a monitoring device on the car in secret without first obtaining a search warrant. The Ministry of Internal Affairs and Communications has a policy to facilitate police to use this method by relieving the guidelines to protect privacy implications. What is the core issue?


IMMEDIATE LEGISLATION IS REQUIRED TO CONTROL POLICE SEARCH


Judgment from the Osaka District Court changed: one given in January this year says as legal, while the other in June says as illegal over the GPS tracking by police.


The National Police Agency set forth internal norms in 2006 and the law enforcement units have used this tracking system. The first court ruling from the Osaka District Court, which is the primary judicial decision over the issue, said ‘privacy was not violated seriously’ and that the search had been lawful. But the June ruling told that ‘the search was gravely unlawful as it severely infringed privacy because of disregard of obtaining a warrant’.


Public and Private Sites - Not Separated


Now let’s think over the issue; what is the problem in police search through GPS tracking in the absence of a warrant? Why does such a search violate the rights of privacy?


The major rationale in favor of the GPS tracking is that the police traces movements of a car going on the public road and that privacy of the person is not infringed. His/her privacy is protected at home and inside personal sites. They say protection level is lower in the public space. This is a convenient theory to separate one from the other. We must, however, contemplate over another aspect.


Firstly, a law enforcement unit can use the GPS system infinitely, 24-hour a day for 365 days, as long as battery of the emitting device works. The police authority can not only shadow and watch a suspect but also put him/her under surveillance at all time. A tracking device may be shifted from a vehicle to personal belongings, a bag or a cellular phone.


Secondly, police can collect data not only in the public space but also in the personal space. Data include hobbies, orientation, credo and thought, and human relations.


Thirdly, a problem of how the data should be used. If law enforcement authorities are allowed to use them for an arbitrary period and for person(s), laws cannot control the actions.


In Germany the GPS search is permitted but obligations are imposed to announce the person to the effect after such a search. In addition, limitations are put: only to serious cases, like a terrorist criminal, which may affect negatively on social security. In the United States a GPS search is allowed, but the Supreme Court ruling demands prior obtainment of a warrant.


A GPS search system is very effective, and simultaneously a violation level against privacy is very high. Therefore legally-set regulation is indispensable for the use of data. The legislative organ must respond immediately.


Police Must Rely on Warrant


Search by police relates to the constitutional rights. Problems emerge, if the guidelines of the Ministry of Internal Affairs and Communications and the internal rules of the National Police Agency are solely applied. Usually in Japan a warrant is required for arresting and searching a suspect. This practice prevents abuse of power by way of judicial authority which issues a warrant in advance.


A judicial order is required for wire-tapping, but at present it is not needed for planting a GPS tracking unit. Such a practice cannot be left untouched.



June 30, 2015