I read Dr.Maria Osula san’s article” Notification requirement in transborder remote search and seizure;domestic and international law perspective” and found  very interesting.So I wrote the Japanese law aspects.

1  remote search and seizure in Japanese law.

Code of Criminal Procedure(Part I and Part II-CCP ) was amended in 2011.Amended code prepard the remote search and seizure  of remote stored data.

Article 99

(1)　The court may, when it believes it to be necessary, seize articles of evidence or articles which are considered to require confiscation; provided, however, that this shall not apply when otherwise so provided. (2)Where the article to be seized is a computer, and with regard to a recording medium connected via telecommunication lines to such computer, it may be reasonably supposed that such recording medium was used to retain electromagnetic records, which have been made or altered using such computer or electromagnetic records which may be altered or erased using such computer, the computer or other recording medium may be seized after such electromagnetic records have been copied onto such computer or other recording medium.

LEA has the same authority if get warrant.

Article 218

(1)　A public prosecutor,a public prosecutor‘s assistant officer or a judicial police official may, if necessary for the investigation of an offense, conduct a search, seizure, seizure ordering records or inspection upon a warrant issued by a judge. In such cases, the inspection and examination of a person shall be conducted upon a warrant for physical examination. (2)　Where the article to be seized is a computer, and with regard to a recording medium connected via telecommunication lines to such computer, it may be reasonably supposed that such recording medium was used to retain electromagnetic records, which have been made or altered using such computer or electromagnetic records which may be altered or erased using such computer, the computer or other recording medium may be seized after such electromagnetic records have been copied onto such computer or other recording medium.

In the remote access case,warrant require the prescribe the scope of the data.

Article 219

(2)　In cases of paragraph (2) of the preceding Article, in addition to the matters prescribed in the preceding paragraph, the warrant set forth in the preceding Article shall contain the scope to be copied out of the electromagnetic records with regard to the recording medium connected via telecommunication lines to the computer which is to be seized.

2 Notice of warrant/seizure

Warrants shall be shown to the person.

Article 110

The search warrant, seizure warrant or seizure warrant ordering records shall be shown to the person who is to undergo the measure.

But we have to consider the protection of the remote stored data which is controlled by the third parties.

But there is no legal measures to make a notice to third partise.

At the forfeiture,notice system was prepaed at the amendment of CCP.

First-aid Measures Law on Procedures to Confine Third-Party Ownership in Criminal Cases set out the protection of the third party when LEA goes to forfeiture.

Article 2 (1)
 In the case that the prosecutor raises the prosecution, it is not clear whether it belongs to the owner of a person other than the accused(hereinafter referred to as "third party" (belonging to the accused or belonging to a third party) Hereinafter the same shall apply), the prosecutor shall promptly notify  the third party in writing  of  the  following  matters  when  forfeiture  is deemed necessary.

Article 1 bis set out
With regard to the application of this Act, electromagnetic records attributable to persons other than the accused shall be deemed to belong to that person.

3 Exterritorial stored data

Therefore, there is a problem of how to understand when data exists abroad, this point has already been discussed at the first session of the legislation council.  We can understand it from the discussion of  the council member and office  member.

Let’s see the discussion.

Office “The problem of domestic and overseas in relation to the seizure set out at the item No5 is the procedure law issue, especially to do seizure or search for foreign recording media causes both issues under the criminal procedure law and sovereignty. It is generally a matter of sovereignty to apply enforced disposition on the recording mediums existing in other countries.Cyber Convention premise that the international cooperation procedure should be carried out.So in the cases that it was discovered or being confirmed/confirmed in the course of the investigation that it is a recording medium with such a problem, in the case of the Cyber Convention, it will be said that we will request a cooperation in accordance with the Convention, that is the case it is. ”

Member: “Do you understand it after you (access and ) open it?”

Office “Although there may be times when you try to open it, or if you know earlier that it is somewhere else in the country that such a remote storage location is not in Japan, I think that ,when you are aware of,we will take the procedure of international cooperation”

(Skip)

Member “Do you mean that LEA will inquire the data location of the current IP, that is, if LEA can not find out what country the network is connected from the screen, so LEA shall take a procedure to confirm which country server is with chasing the IP?

Office “Regarding the location of the computer, perhaps because there are various kinds of information in the process of investigation, it will be decided based on it.But once it is revealed that the medium is located in other countries,that is to take such a procedure of mutual assistance. I think that it is probably a case-by-case and that there are many in what kind of evidence will show the location.”

In other words,Japan’s stand point is that when LEA find the probability(possibility ?) of exterritorial search and seizure,LEA shall use the  mutual assistance procedure.

In case of “loss of place”, I think that there may be no discussion in Japan.