Surveillance-type Investigation

2020/11/11

Information and communication technology, which evolved dramatically from the late 20th century into the 21st century, is transforming the very nature of criminal investigation. Information and communication technology has made the generation, collection, and accumulation of diverse data (big data) possible and easy. Here, a new type of investigation called "surveillance-type investigation" emerges.

For example, if location information is utilized for criminal investigations (referred to as "location information acquisition investigation"), it becomes possible to monitor subjects comprehensively. Each piece of location information is merely a record that an individual was at a specific place at a specific time, but by collecting location information comprehensively, it is possible to understand an individual's behavioral history. By tracing behavioral histories, such as where an individual went and who they met, it becomes possible to reveal not only their address and workplace but also their social relationships and, by extension, their thoughts and beliefs. Such investigations may have a chilling effect on individual behavior and expressive activities ("chilling effect on freedom of expression").

Furthermore, facial recognition technology is one of the technologies that has seen remarkable development in recent years. According to reports, investigative agencies in Japan have already begun operating facial recognition systems (for the time being, this type of investigative method will be referred to as "facial recognition investigation"). In this regard, since faces are exposed to the public and the face itself is not confidential, facial information can be said to have properties similar to location information. If so, facial recognition investigation could be classified as a surveillance-type investigation, similar to location information acquisition investigation. On the other hand, it has been pointed out that the accuracy of facial recognition technology decreases when applied to people of color. Consequently, in the United States, some companies have stopped providing facial recognition systems that could potentially promote racial bias or discrimination to investigative agencies. Furthermore, in several regions of the U.S., ordinances have been enacted prohibiting the use of this technology by law enforcement agencies.

In the future, it is expected that there will be an increasing movement in Japan calling for the proper operation of surveillance-type investigations, including location information acquisition investigation and facial recognition investigation. At that time, discussions will likely be required that take into account perspectives such as "whether there is a risk of a chilling effect on freedom of expression" and "whether there is a possibility of promoting structural discrimination."