Statement Calling for Amending the Bill on the Digitalization of Criminal Proceedings to Protect and Realize People’s Right to Privacy and Defense
On February 28th, 2025, the Bill Partially Amending the Code of Criminal Procedure and Other Related Acts (the "Bill") to address matters including advances in information and communication technology was approved by the Cabinet and submitted to the Diet.
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 Japan Federation of Bar Associations (the "JFBA") called for implementing changes to protect people’s rights, such as their right to privacy in the collection of digital records by investigative authorities in the "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" issued on March 14th, 2024.
The Bill, as approved by the Cabinet, allows the establishment of a system to order the provision of digital records with criminal penalties for disobeying such orders. However, it lacks a mechanism to limit the collection and accumulation of people’s private information and companies’ confidential information irrelevant to the crime by investigative authorities. Today, an immense amount of such information is stored via widely used smartphones and cloud storage. The risk of such information being collected and stored by investigative authorities is much higher than the risk of audio and other types of communications being intercepted. Despite the risk, the Bill does not specify any requirements or procedures for the collection of digital records as those specified by the Act on Communications Interception for Criminal Investigation, or include any mechanism to prevent the acquisition of information irrelevant to crime or force the deletion of such information. If the Bill becomes an act with this content being unchanged, there is no option but to deem the risk of investigative authorities invading people’s private sphere and violating their privacy and other rights as both realistic and significantly high.
In its "Opinion Calling for the Introduction of IT in Criminal Proceedings to Protect and Realize People’s rights" issued on July 13th, 2023, the JFBA called on the government to proceed with such introduction from the perspective of protecting and realizing such rights, expand the right to have interviews and communicate, including allowing for the online provision and receipt of electronic data, and realize the right to defense and a speedy trial through the digitalization of evidence disclosure.
However, while the Bill allows the establishment of many systems that will be beneficial to investigative authorities, it also severely disregards the right to defense by, for example, not recognizing the right of people who are a suspect or defendant in a criminal case to have online interviews with their attorney or to provide and receive electronic documents online. Therefore, the bill must be regarded as lacking balance.
Based on the observation that the Bill includes issues that cannot be overlooked from the perspective of protecting fundamental human rights, the JFBA strongly calls for protecting people’s right to privacy and their other rights and amending the Bill through Diet sessions to realize matters such as the right to have online interviews with attorneys and provide and receive electronic documents online.
March 7, 2025
Reiko Fuchigami
President, Japan Federation of Bar Associations