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Law enforcement officials in Japan may request the courts to order the decryption of encrypted information during criminal investigations. Courts during trials may also order the decryption of encrypted information.

The Criminal Procedure Code states that where an article to be seized is a recording medium pertaining to electronic records, the person executing the search or seizure order may ask the subject of the order to operate the computer or provide “some other form of cooperation,” [1] which includes decryption of encrypted electronic records. [2] However, the subject is not penalized for refusing to provide such cooperation. [3]

A court may order the custodian of the electronic records or a person with authority to use the electronic records to record the necessary records onto the recording medium or print them out, and order the recording medium seized. [4] Commentators explain that the term “to record” includes “de-encrypt[ing] encrypted electronic records and record[ing]” the necessary electronic records onto the recording medium. [5] However, refusing to make such a recording is not penalized. [6]

Law enforcement officials may request telecommunications carriers to cooperate in implementing the interception of communications pursuant to a court order. [7] Telecommunications carriers that encrypt communications may be asked by law enforcement officials to decrypt the communications. [8] Carriers are obligated to cooperate with law enforcement officials but are not penalized for refusing to do so. Carriers are not required to develop systems or software to decrypt communications because doing so is beyond the scope of the Code’s requirement for carriers to cooperate in implementing the interception of communications. [9] Law enforcement officials are required to record all encrypted communications in an appropriate medium and attempt to decrypt it later. [10] Currently, the interception of communications is allowed for the investigation of four organized crimes: drug trafficking, gun running, mass smuggling of people, and murders by crime syndicates. [11] A proposal for an amendment to the law that would expand its application is pending before the Diet. [12]

When law enforcement officials obtain encrypted information through the interception of communications or seizures, they may request private firms to decrypt it. [13] However, such firms are not penalized for declining the request. [14]

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Prepared by Sayuri Umeda
Foreign Law Specialist
May 2016


[1] Code of Criminal Procedure, Act No. 131 of July 10, 1948, amended by Act No. 74 of 2011, arts. 111-2 & 222, English translation available on the Japanese Law Translation website, at http://www.japaneselawtranslation.go.jp/ law/detail/?printID=&ft=2&re=02&dn=1&yo=criminal&ia=03&x=0&y=0&ky=&page=2&vm=02 , archived at https://perma.cc/8PQ9-CFS2 .

[2] 条解 刑事訴訟法(第4版) 追補 [Article-by-Article Commentary on Criminal Procedure Code (4th ed.) Supplement] 19 (Koya Matsuo et al. eds., 2009),http://www.koubundou.co.jp/files/35467_1.pdf, archived at https://perma.cc/GZJ5-5Z9P.

[3] Id .

[4] Code of Criminal Procedure art. 99-2 & art. 218, para. 1.

[5] Supplement, supra note 2, at 12.

[6] Id .

[7] Act on Interception of Communications for Criminal Investigation, Act No. 137 of 1999, art. 11.

[8] Kenzaburo Yazawa & Shunji Kato, Q&A Soshikiteki Hanzai Taisaku Sanpo 135 (2001), bibliographic information at https://lccn.loc.gov/2005442553.

[9] Id .

[10] Id . art. 13, para. 2.

[11] Id . art. 3.

[12] Bill to Amend Criminal Procedure Code and Others, Cabinet Bill No. 42 of 189th Diet Session (2015).

[13] Code of Criminal Procedure art. 197, para. 2.

[14] Budget Committee 10th Meeting Minutes , House of Councillors, 190th Diet 39 (Mar. 7, 2016) (statement of Mitsuhide Iwaki, Minister of Justice) http://kokkai.ndl.go.jp/SENTAKU/sangiin/190/0014/19003070014010.pdf , archived at https://perma.cc/F3TB-YYFJ.

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Last Updated: 09/30/2016