Departmental Bulletin Paper 通信の秘密不可侵の法規範との関係における通信用端末設備の法的位置づけ及びその内包する情報に対する保護のあり方-米国の「逮捕に伴う捜索」に関する判例法理を手がかりとして-

海野, 敦史

95 ( 3-4 )  , pp.173 - 219 , 2016-03-25 , 長崎大学経済学会
This paper clarifies the extent of government's authorized access to information on cell phones and similar communications terminal devices under Paragraph 2,Article 21 of the Constitution of Japan, which protects the “secrecy of any means of communication.” This paper considers the U.S. standard that was established by the 2014 decision, Riley v. California. In this case, it was decided that the police must obtain a search warrant before they access the digital data on a cell phone seized from a person who has been arrested. The U.S. Court decided that it would be unreasonable to allow a search without a warrant, since the amount and variety of information on a cell phone often are enough that the police are able to reconstruct much of the suspect's private life. The U.S. Court also held that the extent of a warrantless “search incident to an arrest” is limited in the sense that it is allowed to find hidden weapons or prevent the destruction of evidence, and that this doctrine does not allow warrantless searches of cell phone data after an arrest. However, it does not fully explain the difference in the relevance to privacy between data on communications terminal devices and those on other devices or commodities. In Japan, Constitutional rights for secrecy of communications do not, in principle allow the police to implement a warrantless “search incident to arrest” to the content of communications terminal devices including a cell phone or any other communications facilities, regardless of its relevancy to privacy. This norm strongly protects communications users by preventing the police or other governmental agencies from having voluntary access to the communications terminal devices and data on them. It is thus concluded that the secrecy of communications plays an important role to distinguish data on communications terminal devices from those on other devices in terms of the extent of Constitutional protection.

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