Using the new technology such as Global Positioning System (GPS) in criminal investigation poses the problem relating to the target’s right. This past March, the Japanese Supreme Court’s grand bench ruled that the collection of GPS data by police threats target’s “privacy” and is the mandatory investigation required a warrant because of its unique features of GPS investigation. However, there is no consensus as to what “privacy” exactly means in the field of criminal law. Does it overlap with the right protected from unreasonable search and seizure, property rights, or any other rights? It can be still disputable to consider what is the right infringed by the GPS investigation. This paper focuses on the issues related to the scope of what we call as “privacy” and the limits of using GPS devices.
In this paper, I examine how maps can play – or fail to play – a role in processing spatial information in legal environment. Digital cartography, especially GIS with GPS, has lately been getting more attention among public administrators as an ideal tool for effective governance. With its multiple functionalities, such as digital coding capabilities, database functions, and visualization capabilities, GIS is often critically seen as the embodiment of Foucault’s sense of rational governance and is often referred to as a tool for governmental power. As a visualized format, however, non-GIS-processed maps can also inspire investigators’ imaginations. Maps can be viewed as communication tools to circulate and exchange spatial data and ideas, not only among criminal investigators, but also among journalist and publics. In this sense, the primary interest of criminal investigators often lies in the communicative effectiveness of GPS.
In 2017, the Japanese Supreme Court held that warrantless GPS searches are illegal. This case shows the boundary of permissible investigation using high technology. Rapidly developing technology challenges legal research. The Japanese Constitution has no term for “privacy,” and its notion and scope have been questioned in Japan. This paper reviews notion of privacy in Japanese constitution. This paper reviews constitutional issue of privacy and GPS investigation.
This paper examines the two Supreme Courts’ decisions in the United States and Japan upon installation of a GPS tracking device on a vehicle. In U.S. v. Jones the Supreme Court of the United States in 2012 held that the government’s attachment of a GPS device to a vehicle constitutes a “search” under the Fourth Amendment. The Court held that the GPS attachment on a vehicle was the government’s physical intrusion on an “effect” under the Fourth Amendment. The Court held the installation is common law trespass which constitutes search within the meaning of the Amendment at the time it was adopted. Similarly in 2017 the Supreme Court of Japan held that attaching a GPS device on a vehicle without a warrant is illegal. In this case the Court held that the GPS investigation illegally violated privacy of the suspect. In addition the Court also held that the secret attachment of a device invaded the property interest. Some Japanese scholars say this latter holding is very similar to Scalia’s opinion in Jones because it focuses on tangible property interests. However these two cases represents different philosophies of judicial review. In Jones Scalia considered the original meaning of the Amendment should be the guiding principle of constitutional law. In contrast the Japanese Supreme Court likely to rely on the development of various precedents which secure privacy interests. That is the Japanese Court’s judicial philosophy is living constitutionalism.