2021.02.01

2018 (A) 1381

Keishu Vol.75, No.2

Decision concerning whether it is permitted to remotely access a recording medium on which electronic or magnetic records are stored and copy the same records without depending on international assistance in investigation in the case where the same recording medium is located in a State party to the Convention on Cybercrime and a person who has the lawful authority to disclose the same records gives the lawful and voluntary consent to the disclosure thereof

Case charged for display of a recording medium containing electronic or magnetic records of obscene materials and public indecency

Decision of the Second Petty Bench, dismissed

Osaka High Court, Judgment of September 11, 2018

1. Where a recording medium on which electronic or magnetic records are stored is located in a State party to the Convention on Cybercrime and a person who has the lawful authority to disclose the same records gives the lawful and voluntary consent to the disclosure thereof, it is permitted to remotely access the recording medium and copy the same records without depending on international assistance in investigation.

2. Where the police [1] remotely accessed a recording medium from a computer at the place of search stated in a search and seizure warrant that permits the copying of electronic or magnetic records through remote access and copied or otherwise handled the electronic or magnetic records, including emails, etc. relating to the email address of the user of the computer and [2] copied the electronic or magnetic records through remote access from a computer outside the same place, for example, by receiving the grant of an account from the user of a computer located in the same place, even if the recording medium subject to the aforementioned remote accesses was located outside Japan or such probability cannot be denied, procedure [1] can neither be considered to be lawful as a voluntary investigation based on the voluntary consent of the user of the computer nor be considered to fall under the cases provided in Article 32 of the Convention on Cybercrime. However, that procedure can actually be considered to be a procedure based on the same warrant issued after going through judicial review. The police collected evidence that was stated as the subject matter of seizure, etc. in the same warrant through the same procedure as the execution of the same warrant, and cannot be found to have collected or otherwise handled evidence beyond the scope of the disposition permitted by the same warrant. It thus cannot be said that the act of the police of having adopted the policy of conducting remote access, etc. with the voluntary consent of the user of the computer without depending on international assistance in investigation itself is unreasonable. In addition, there are no grounds for denying the effect of the consent of the user of the computer with respect to procedure [2]. Under these circumstances held by the Court, neither procedure [1] nor [2] can be considered to contain serious illegality, and it is thus possible to affirm the admissibility of the evidence collected by the police through those procedures.

3. Where information related to the alleged facts of crime is recognized as being probably recorded on the electronic or magnetic records that are to be copied through remote access based on a search and seizure warrant, it is permitted to copy the electronic or magnetic records without individually confirming the content of the electronic or magnetic records under such circumstances as those where it is difficult to confirm the content of the electronic or magnetic records at the scene of seizure and it is likely that damage, etc., will be caused to information during confirmation work.

4. Both accused persons that had managed and operated video posting and distribution sites on the internet solicited the posting and distribution of videos through the mechanisms, etc. of the aforementioned sites with the intention of providing videos posted or distributed on the aforementioned sites for letting an unspecified and large number of users brows or view them on the aforementioned sites, for the purpose of making profits by using those videos even if they are unedited obscene videos. In response to the aforementioned solicitation, posters and distributors posted or distributed videos in accordance with the systems of the aforementioned sites with the same intention. The crime of display of a recording medium containing electronic or magnetic records of obscene materials and the crime of public indecency are established only when the aforementioned posters and distributors post or distribute unedited obscene videos on the aforementioned sites, and the aforementioned posters and distributors also had never put unedited obscene videos in the state of being recognizable by an unspecified and large number of persons without the aforementioned solicitation and the act of managing and operating the aforementioned sites conducted by both accused persons, etc. Based on the aforementioned facts of this case (see the text of the decision), both accused persons are found to be coprincipals with the aforementioned posters and distributors in relation to the aforementioned crimes.

(There is a concurring opinion concerning 1 and 2.)

(Concerning 1 to 3) Article 99, paragraph (2) and Article 218, paragraph (2) of the Code of Criminal Procedure

(Concerning 1 and 2) Article 32 of the Convention on Cybercrime

(Concerning 4) Article 60, Article 174, and the first sentence of Article 175, paragraph (1) of the Penal Code



Code of Criminal Procedure

Article 99　(2) If 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 electronic or magnetic records which have been made or altered using such computer, or electronic or magnetic records which can be altered or erased using such computer, the computer or other recording medium may be seized after such electronic or magnetic records have been copied onto such computer or other recording medium.

Article 218 (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 electronic or magnetic records, which have been made or altered using such computer or electronic or magnetic records which may be altered or erased using such computer, the computer or other recording medium may be seized after such electronic or magnetic records have been copied onto such computer or other recording medium.



Convention on Cybercrime

Article 32 –Trans-border access to stored computer data with consent or where publicly available

A Party may, without the authorisation of another Party:

a access publicly available (open source) stored computer data, regardless of where the data is located geographically; or

b access or receive, through a computer system in its territory, stored computer data located in another Party, if the Party obtains the lawful and voluntary consent of the person who has the lawful authority to disclose the data to the Party through that computer system.



Penal Code

(Co-Principals)

Article 60 Two or more persons who commit a crime in joint action are all principals.

(Public Indecency)

Article 174 A person who commits an indecent act in public shall be punished by imprisonment with work for not more than 6 months, a fine of not more than 300,000 yen, misdemeanor imprisonment without work or a petty fine.

(Distribution of Obscene Objects)

Article 175 (1) A person who distributes or displays in public obscene objects such as documents, drawings or recording media contained in electronic or magnetic records is punished by imprisonment for not more than 2 years, a fine of not more than 2,500,000 yen or a petty fine, or both imprisonment and a fine. The same applies to a person who distributes obscene records including electronic or magnetic records through the transmission of telecommunications.

The final appeals are dismissed.

No. 1 Determination concerning reasons for final appeal

Of the reasons for final appeal stated by the defense counsel of Accused P, MORI Naoya, IKEDA Ryota, and CHIBANA Yoichiro and the defense counsel of Accused Q, AKITA Masashi, MIZUTANI Kyoji, and TAGOMORI Akira, the argument of a violation of judicial precedent cites a judicial precedent that addressed a different type of facts and is irrelevant in this case or is substantially an argument of a mere violation of laws and regulations and an erroneous finding of facts. The other arguments, including the argument of a violation of the Constitution, are substantially arguments of a mere violation of laws and regulations and an erroneous finding of facts. Therefore, none of the reasons for final appeal constitute any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

No. 2 Determination by the Court's authority

In consideration of the defense counsel's arguments, the Court determines by its authority.

1. Concerning the admissibility of the evidence that the police collected by copying electronic or magnetic records from a recording medium through remote access (meaning accessing to a recording medium connected via telecommunication lines to a computer by using the computer, irrespective of whether the computer is one provided in Article 99, paragraph (2) and Article 218, paragraph (2) of the Code of Criminal Procedure; the same applies hereinafter) or by other means

(1) According to the findings of the judgment in prior instance, as well as the case records, the progress, etc. of investigation concerning the remote access in question is as follows.

(A) On September 30, 2014, the police commenced the execution of search and seizure at the office of Kabushiki Kaisha Y, which is a company operating and managing internet site "X" (hereinafter referred to as "Y"), and its attached facilities based on a search and seizure warrant for the following alleged facts of crime: Z and Accused P, who jointly control and manage the overall operations of Y, and Accused Q, who is Y's representative director, committed the crime of accessoryship to public indecency and the crime of a violation of the Act on Control and Improvement of Amusement Business, etc. on the same site in conspiracy with each other.

The aforementioned search and seizure warrant was a warrant that permitted the copying of electronic or magnetic records (Article 218, paragraph (2) of the Code of Criminal Procedure) through remote access, which stated "a personal computer," etc. as "articles to be seized," and as the "scope to be copied from among the electronic or magnetic records with regard to the recording medium connected via telecommunication lines to the personal computer which is to be seized," the "recording area of the recording medium of a file storage server that is connectable from the personal computer to be seized …, which is used by the user of the personal computer, etc." and the "recording area of the recording medium of an email server that is connectable from the personal computer to be seized …, which is used to store emails sent to or from the email address of the user of the personal computer, etc."

(B) There was doubt that an email service, etc. provided by Company A, which has its main office in the United States, was used at Y, and access to the email server, etc. based on the warrant was considered to be likely to constitute infringement of the sovereignty of a foreign country. Therefore, before implementation of the aforementioned search and seizure, the police had agreed as follows: if it turns out that electronic or magnetic records, including emails, may be stored in an email server, etc. placed outside Japan, the police [officers] would refrain from remotely accessing or otherwise handling those records as execution of a warrant; if the police remotely access or otherwise handle those records, they do so with the consent of the user of the relevant personal computer.

(C) Based on the policy mentioned in (B) above, the police requested Y's officers and employees, including both accused persons, to give consent to the download, etc. of emails, etc. through remote access to an email server, etc., and remotely accessed it after receiving disclosure of the relevant account and password, etc. Then, the police [officer] took the procedure for receiving the voluntary submission of the personal computer, from which the electronic or magnetic records: including emails, were copied, from Accused Q (hereinafter this procedure for collection of evidence is referred to as "Procedure [A]").

However, the police have never given persons concerned in Y a clear explanation to the effect that the aforementioned remote access, etc. is an investigation conducted with voluntary consent. The judgment in prior instance determined that it is not recognized that voluntary consent had been given to Procedure [A] because there is a doubt that persons concerned in Y accepted the request for consent based on the erroneous believe that the remote access, etc. is a compulsory disposition based on the execution of the aforementioned search and seizure warrant, etc. This determination cannot be considered to be unreasonable.

(D) Since September 30, 2014, the date on which the aforementioned search, etc. was commenced, work to copy emails, etc. to the user's personal computer, etc. had been continuously conducted at Y's office but it was still expected to require a considerable time with no prospects for the completion of the work. Under such circumstances, as an option that poses less obstacle to Y's operations, Y suggested to the police a method of granting an account to enable access to the email server, etc. via the police's personal computer, thereby making it possible to download or otherwise handle emails, etc. at a place other than Y's office. With regard to the scope and method, etc. thereof, Y's executives and the police had deliberations with the attendance of Y's attorney, and Accused Q eventually prepared a written consent dated October 3, 2014. Based on this, the police [officer] conducted remote access from an appropriate device outside Y's office and copied the electronic or magnetic records (hereinafter this procedure for collection of evidence is referred to as "Procedure [B]").

(E) The recording medium remotely accessed in Procedures [A] and [B] was located outside Japan or such probability cannot be denied. Incidentally, there are no circumstances indicating that a foreign country had expressed its contrary intention to the aforementioned remote accesses, etc.

(2) The defense counsel argues as follows: the act of acquiring electronic or magnetic records through remote access to a server located outside Japan cannot be conducted under the current Code of Criminal Procedure and should be based just on international assistance in investigation; the police's act of having avoided depending on international assistance in investigation and implementing Procedures [A] and [B] with the intention of escaping from control based on a warrant while recognizing the aforementioned points constitutes infringement of the sovereignty of the country in which the server is located and thus contains serious illegality; therefore, evidence collected through those procedures should be eliminated as unlawfully collected evidence.

However, in light of the text of Article 99, paragraph (2) and Article 218, paragraph (2) of the Code of Criminal Procedure, the legislative backgrounds of those provisions, such as the fact that the provisions were established as part of development of procedural law to conclude the Convention on Cybercrime (Convention No. 7 of 2012), and the content of the provisions of Article 32 of the same Convention, etc., the Code of Criminal Procedure is not considered to assume only remote access, etc. to recording media located within Japan under the aforementioned provisions. It should be considered that in the situation where a recording medium on which electronic or magnetic records are stored is located in a State party to the same Convention and a person who has the lawful authority to disclose the same records gives the lawful and voluntary consent to the disclosure thereof, it is permitted to remotely access the same recording medium and copy the same records without depending on international assistance in investigation.

On that basis, first examining the admissibility of the evidence collected through Procedure [A], Procedure [A] is not found to be based on the voluntary consent of persons concerned in Y. Therefore, it can neither be considered to be lawful as a voluntary investigation nor be considered to fall under the cases provided in Article 32 of the aforementioned Convention. However, as explained in the judgment in prior instance, Procedure [A] can substantially be considered to be a procedure based on the aforementioned search and seizure warrant issued after going though judicial review, and the police collected evidence that was described as the subject of seizure, etc. in the same warrant through the same procedure as the execution of the same warrant and are not found to have conducted the collection of evidence, etc. beyond the scope of disposition permitted by the same warrant. In addition, based on the facts of this case, the police's adoption of the policy of conducting remote access, etc. with the voluntary consent of persons concerned in Y without depending on international assistance in investigation itself cannot be considered to be unreasonable. It is also neither found that the police behaved in such a way as to force persons concerned in Y to give consent, other than the police's failure to clearly explain that the remote access, etc. was conducted as investigation based on the voluntary consent, nor that the police had the intention of escaping from various provisions on the principle of warrants. For the reasons described above, it cannot be said that Procedure [A] contains serious illegality.

Incidentally, the defense counsel also argues as follows: under control based on the principle of warrant[s], it is, in principle, permitted to seize only articles that are found to be related to the alleged facts of crime, and the act of the police contains illegality of comprehensive acquisition of the electronic or magnetic records without questioning the relationship to the alleged facts of crime. However, in light of the aforementioned facts, there is the probability that information related to the aforementioned alleged facts of crime is recorded on the electronic or magnetic records to be copied based on the aforementioned search and seizure warrant. In light of the difficulty of confirming the content of the electronic or magnetic records at the scene of seizure and the likelihood of causing damage, etc. to information during confirmation work as pointed out in the judgment in prior instance, it is considered permissible in this case to copy the electronic or magnetic records without individually confirming the content thereof in executing the same warrant. The defense counsel's arguments are not acceptable.

Moreover, according to the progress mentioned in (1) above, the determination of the court of prior instance that denied existence of ground for denying the effect of the consent of persons concerned in Y with regard to Procedure [B] cannot be considered unreasonable. In light of the explanations made above, Procedure [B] cannot be considered to contain serious illegality.

For the reasons described above, the admissibility of the evidence collected by the police through Procedures [A] and [B] can be affirmed, respectively, and the conclusion of the judgment in prior instance to the same effect is legitimate.

2. Concerning whether both accused persons are found to be coprincipals in the crime of display of a recording medium containing electronic or magnetic records of obscene materials and the crime of public indecency

(1) According to the findings of the judgment in prior instance and the judgment in first instance upheld thereby, as well as the case records, the facts concerning the aforementioned crimes are as follows.

(A) Outline, etc. of X, INC. (hereinafter referred to as "Company X"), X Video and X Live

(a) Company X is a company located in the United States and it manages and operates the aforementioned site "X." Within X, Company X had provided posting site service called the "X Video" since November 2007 and distribution site service called [the] "X Live" since August 2010, respectively (hereinafter the aforementioned posting site and distribution site are referred to as the "Sites").

(b) On the X Video site, users can post video data on a server, with which Company X signs on, via the internet. Posted video data is first converted to suit the intended use, such as use for non-paid members and use for paid members, and is then sent to a distribution server managed by Company X. An unspecified and large number of viewers can view the content of those videos through access to the server. The X Video offers various privileges to paid members compared to non-paid members, and takes measures to encourage viewers to be registered as paid members.

In addition, the X Video takes measures to encourage posters to post more videos, through means such as a mechanism in which if a viewer is newly registered as a paid member via a posted video, the poster of the video obtains points corresponding to a certain percentage of the registration fee as reward and can convert those points to cash and a mechanism in which viewers evaluate posted videos.

The X Video site has two categories, "general" and "adult." Videos posted on the X Video Adult had included a considerable number of unedited obscene videos in which male and female genitals are baldly expressed (hereinafter referred to as "unedited obscene videos") since before this case. On the X Video Adult site, the keyword "unedited" (meaning "unedited obscene videos") had been indicated among "words attracting attention," and many thumbnails of unedited obscene videos had been indicated among "recommended videos."

(c) On the X Live site, a user can distribute video data shot with a web camera, etc. to a server managed by Company X live via the internet. An unspecified and large number of viewers can view those videos in real time through access to the server.

The X Live site provides two forms of distribution, specifically, distribution for free and that for a fee. It takes measures to encourage distributors to distribute more videos, through means such as a mechanism in which if a video distributed for a fee is viewed, the distributor of the video obtains the points paid by the viewer after deducting the points paid to X as a fee therefrom as reward and can convert them to cash, a mechanism in which a company or individual (agent) that manages an entertainer (performer) appearing on the X Live site sets a viewing fee and can receive points as reward in the same way as above; and a mechanism in which the names of distributors who produce top sales and the amount of their sales are indicated on the screen of the X Live site.

The X Live site also has two categories, "general" and "adult," and the X Live Adult site had also distributed a considerable number of unedited obscene videos since before this case.

(B) Content of Y's operations and circumstances of participation of both accused persons, etc. therein

(a) At the time of this case, Y was carrying out most of the operations related to X, and was managing and operating X's overall operations, including the X Video and the X Live, together with Company X.

(b) At the time of this case, both accused persons were managing and operating Company X's overall operations through Y's employees, together with Z, the representative of Company X (hereinafter the same person, together with both accused persons, are also collectively referred to as the "accused persons, etc.").

The adult category of the X Video was set up based on the policy of Accused P and Z.

Based on Z's policy, the X Live was developed as the primary sources of revenue, following blogs and videos, and the adult category was established in the same manner as that of the X Video. The names of distributers who produce top sales on the X Live site and the ranking of the amount of sales, etc. had been reported to both accused persons, etc., and the adult category came to account for over 90% of the total sales. Both accused persons, etc. had ascertained the activities of agents that were making large profits while calling them the "sex distribution center."

(c) The Sites had adopted measures, such as freezing, against such contents as child pornography, bestiality, photographs of corpses, and serious violence, based on certain standards. In particular, for the first two, the Sites had taken measures, such as establishing a monitoring system and deleting inappropriate posts in a proactive manner. On the other hand, for unedited obscene videos, the Sites had adopted the policy of basically leaving them in the adult categories. As a result, as mentioned above, a considerable number of unedited obscene videos were posted and distributed on the Sites, and on the X Video Adult site, unedited obscene videos were not deleted and were kept available for browsing for a long period of time.

Both accused persons, etc. had been repeatedly cautioned by their attorneys that they might be held criminally liable in Japan for their act of having permitted the posting and distribution of unedited obscene videos based on their understanding that there is no problem with the act under the law of the United States. Nevertheless, both accused persons, etc. deleted the word "unedited pornography" from a warning message to posters indicated on the upload screen of the X Video. Even after a distributor on the X Live Adult site, who had been subject to inquiry for investigation with regard to the alleged case of public indecency, was arrested, both accused persons, etc. maintained the aforementioned policy, and have left unedited obscene videos, for which deletion or other measures are taken on other video posting sites, available on the Sites.

(C) Circumstances, etc. of posting, etc. in this case

As videos posted by B several times in the past had never been deleted, B came to post the unedited obscene video stated in No. 1 held in the judgment in first instance (crime of display of a recording medium containing electronic or magnetic records of obscene materials) for enjoying viewers' responses or otherwise satisfying his/her desires.

C registered him/herself as an agent on the X Live Adult site on the grounds that he/she can easily get money as viewers constantly enter the site and that the site has a fee setting mechanism as mentioned in (A)(c) above. C then distributed the unedited obscene video stated in No. 2 held in the judgment in first instance (crime of public indecency) for a fee in conspiracy with D for the purpose of making profits. E came to know the existence of the X Live site, which distributes unedited obscene videos that are restricted on other sites, and registered him/herself as an agent and distributed the unedited obscene video stated in No. 3 held in the judgment in first instance (crime of public indecency) for a fee in conspiracy with performers for a fee, for the purpose of making profits (hereinafter B, C, D, and E are collectively referred to as the "Posters").

(2) According to the aforementioned facts, while recognizing the probability that unedited obscene videos are posted or distributed on the Sites, both accused persons and Z have the intention of providing those videos for browsing or viewing by an unspecified and large number of users on the Sites, for the purpose of making profits by using them even if videos posted or distributed are unedited obscene videos. It can be said that the aforementioned intention of both accused persons and Z had been indicated to the Posters by solicitation of posting and distribution of videos through the aforementioned mechanisms and content of the Sites and the situation of operations, etc. On the other hand, in response to the aforementioned solicitation, the Posters conducted the aforementioned posting or distribution in accordance with the systems of the Sites based on their intention of providing videos for browsing or viewing by an unspecified and large number of users. It can be said that the aforementioned intention of the Posters had also been expressed to both accused persons and Z, which manage and operate the Sites. Based on that, it is possible to determine that an implicit communication of the intention to post or distribute unedited obscene videos existed between both accused persons and Z and the Posters.

The crime of display of a recording medium containing electronic or magnetic records of obscene materials and the crime of public indecency in question are established only when the Posters post or distribute unedited obscene videos on the Sites. On the other hand, it is obvious that the Posters also had never put unedited obscene videos in the state of being recognizable by an unspecified and large number of persons without the aforementioned solicitation and the act of managing and operating the Sites conducted by both accused persons and Z. In addition, with regard to the crimes of public indecency in question, both accused persons and Z are found to have shared the intention of gaining more viewing fees with C, D, and E.

According to the aforementioned circumstances, the determination of the court of prior instance that found both accused persons' conspiracy with Z and the Posters and determined that both accused persons are found to be coprincipals in the crime of display of a recording medium containing electronic or magnetic records of obscene materials and the crime of public indecency is justifiable.

3. Accordingly, in accordance with Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the decision. There is a concurring opinion of Justice MIURA Mamoru concerning No. 2, 1. of the holdings.

The concurring opinion stated by Justice MIURA Mamoru is as follows.

I express a concurring opinion concerning the admissibility of the evidence collected by copying electronic or magnetic records from a recording medium through remote access or by other means.

Where a recording medium on which electronic or magnetic records are stored is located in a foreign country, the act of remotely accessing the same recording medium and copying the same records can cause a problem in relation to the sovereignty of that foreign country. However, as explained in the Court's opinion, it is considered permissible to remotely access such recording medium and copy such records without depending on international assistance in investigation if the recording medium is located in a State party to the Convention on Cybercrime and a person who has the lawful authority to disclose the same records gives the lawful and voluntary consent to the disclosure thereof.

In this case, the recording medium to be remotely accessed in Procedures [A] and [B], respectively, is located outside Japan or such probability cannot be denied, and whether it is located in a State party to the same Convention is not clear. However, in such case, in light of the explanation made above, the admissibility of the evidence collected by those procedures should be determined in consideration of whether a person who has the authority has given the voluntary consent and various other circumstances that are recognized in relation to the procedures.

Justice KUSANO Koichi

Justice KANNO Hiroyuki

Justice MIURA Mamoru

Justice OKAMURA Kazumi