{"id":945,"date":"2017-09-17T11:38:59","date_gmt":"2017-09-17T02:38:59","guid":{"rendered":"https:\/\/itresearchart.biz\/?p=945"},"modified":"2017-09-18T10:24:13","modified_gmt":"2017-09-18T01:24:13","slug":"japanese-view-for-remote-search-and-seizure-of-extraterritorial-data","status":"publish","type":"post","link":"https:\/\/itresearchart.biz\/?p=945","title":{"rendered":"Japanese view for remote search and seizure of extraterritorial data"},"content":{"rendered":"

I\u00a0read Dr.Maria Osula\u00a0san’s article” Notification requirement in transborder remote search and seizure;domestic and international law perspective<\/a>” and\u00a0found \u00a0very interesting.So I wrote the Japanese law aspects.<\/p>\n

1 \u00a0remote search and seizure in Japanese law.<\/p>\n

Code of Criminal Procedure(Part I and Part II-CCP ) was amended in 2011.Amended code prepard the remote search and seizure\u00a0 of remote stored data.<\/span><\/p>\n

Article 99<\/span><\/p>\n

(1)\u3000<\/span>The court<\/span> may<\/span>, when it believes it to be necessary, seize<\/span> articles of evidence<\/span> or <\/span> articles which are consider<\/span>ed to require confiscation<\/span>; provide<\/span>d, however, that<\/span> this shall not<\/span> apply<\/span> when otherwise so provide<\/span>d. (2)<\/span>Where the<\/span> article to be seize<\/span>d is a computer<\/span>, and<\/span> with regard to a record<\/span>ing medium connected via telecommunication lines to such<\/span> computer<\/span>, it may<\/span> be reasonably supposed that<\/span> such<\/span> record<\/span>ing medium was use<\/span>d to retain <\/span> electromagnetic record<\/span>s, which have been made or<\/span> alter<\/span>ed using such<\/span> computer<\/span> or<\/span> electromagnetic record<\/span>s which may<\/span> be alter<\/span>ed or<\/span> erased using such<\/span> computer<\/span>, the<\/span> computer<\/span> or<\/span> other<\/span> record<\/span>ing medium may<\/span> be seize<\/span>d after such<\/span> electromagnetic record<\/span>s have been copied onto such<\/span> computer<\/span> or<\/span> other<\/span> record<\/span>ing medium.<\/em><\/h4>\n

LEA has the same authority if get warrant.<\/p>\n

Article 218<\/span><\/p>\n

(1)\u3000<\/span>A public prosecutor<\/span>,a public prosecutor<\/span>‘s assistant officer<\/span> or<\/span> a judicial police official<\/span> may<\/span>, if necessary for the<\/span> investigation of an offense<\/span>, conduct<\/span> a search<\/span>, seizure<\/span>, seizure<\/span> ordering record<\/span>s or<\/span> inspection<\/span> upon a warrant<\/span> issue<\/span>d by a judge<\/span>. In such<\/span> case<\/span>s, the<\/span> inspection<\/span> and<\/span> examination<\/span> of a person<\/span> shall<\/span> be conduct<\/span>ed upon a warrant<\/span> for physical examination<\/span>. (2)\u3000<\/span>Where the<\/span> article to be seize<\/span>d is a computer<\/span>, and<\/span> with regard to a record<\/span>ing medium connected via telecommunication lines to such <\/span>computer<\/span>, it may<\/span> be reasonably supposed that<\/span> such<\/span> record<\/span>ing medium was use<\/span>d to retain<\/span> electromagnetic record<\/span>s, which have been made or<\/span> alter<\/span>ed using such<\/span> computer<\/span> or<\/span> electromagnetic record<\/span>s which may<\/span> be alter<\/span>ed or<\/span> erased using such<\/span> computer<\/span>, the<\/span> computer<\/span> or<\/span> other<\/span> record<\/span>ing medium may<\/span> be seize<\/span>d after such<\/span> electromagnetic record<\/span>s have been copied onto such<\/span> computer<\/span> or<\/span> other<\/span> record<\/span>ing medium.<\/em><\/h4>\n

In the remote access case,warrant require the prescribe the scope of the data.<\/p>\n

Article 219<\/span><\/p>\n

(2)\u3000<\/span>In case<\/span>s of paragraph<\/span> (2) of the<\/span> preceding Article<\/span>, in addition<\/span> to the <\/span> matters prescribed in the<\/span> preceding paragraph<\/span>, the <\/span> warrant<\/span> set forth in the<\/span> preceding Article<\/span> shall<\/span> contain the<\/span> scope to be copied out of the<\/span> electromagnetic record<\/span>s with regard to the <\/span> record<\/span>ing medium connected via telecommunication lines to the<\/span> computer<\/span> which is to be seize<\/span>d.<\/em><\/h4>\n

2 Notice of warrant\/seizure<\/p>\n

Warrants shall be shown to the person.<\/p>\n

Article 110<\/p>\n

The search warrant, seizure warrant or seizure warrant ordering records shall be shown to the person who is to undergo the measure.<\/em><\/h4>\n

But we have to consider the protection of the remote stored data which is controlled by the third parties.<\/p>\n

But there is no legal measures to make a notice to third partise.<\/p>\n

At the forfeiture,notice system was prepaed at the amendment of CCP.<\/p>\n

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.<\/span><\/p>\n

Article 2 (1)\r\n 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.<\/pre>\n
Article 1 bis set out
\nWith regard to the application of this Act, electromagnetic records attributable to persons other than the accused shall be deemed to belong to that person.<\/p>\n
3 Exterritorial stored data<\/p>\n
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.\u00a0 We can understand it from the discussion of\u00a0 the council member and office \u00a0member.<\/p>\n
Let’s see the discussion.<\/p>\n
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. ” <\/span><\/h4>\n
Member: “Do you understand it after you (access and ) open it?”<\/span><\/h4>\n
Office “Although there may be times when you try to open it, or if you know  earlier <\/span>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”<\/span><\/h4>\n
(Skip)<\/span><\/h4>\n
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? <\/span><\/h4>\n
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.” <\/span><\/h4>\n
In other words,Japan’s stand point is that when LEA find the probability(possibility ?)\u00a0of exterritorial search and seizure,LEA shall use the\u00a0\u00a0mutual assistance procedure.<\/p>\n
In case of “loss of place”, I think that there may be no\u00a0discussion in\u00a0Japan.<\/p>\n","protected":false},"excerpt":{"rendered":"I\u00a0read Dr.Maria Osula\u00a0san’s article” Notification requirement in transborder remote search and sei […]","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false},"version":2}},"categories":[1],"tags":[],"jetpack_publicize_connections":[],"aioseo_notices":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p8IUOX-ff","_links":{"self":[{"href":"https:\/\/itresearchart.biz\/index.php?rest_route=\/wp\/v2\/posts\/945"}],"collection":[{"href":"https:\/\/itresearchart.biz\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/itresearchart.biz\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/itresearchart.biz\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/itresearchart.biz\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=945"}],"version-history":[{"count":4,"href":"https:\/\/itresearchart.biz\/index.php?rest_route=\/wp\/v2\/posts\/945\/revisions"}],"predecessor-version":[{"id":949,"href":"https:\/\/itresearchart.biz\/index.php?rest_route=\/wp\/v2\/posts\/945\/revisions\/949"}],"wp:attachment":[{"href":"https:\/\/itresearchart.biz\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=945"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/itresearchart.biz\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=945"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/itresearchart.biz\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=945"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}