Abstract
With regards to historical cell site location data, some arguments in the United States (hereinafter “business records theory”) suggest that they are a part of “business records” that communications serv-ice providers may handle at their own discretion. Based on the Constitution of Japan, however, those data are supposed to be protected under “secrecy of communications”, and the business records theory conflicts with this need for protection. From this fact, the following problems with business records theory arise and thus nullify its application to the “secrecy of communications” concept. First, the the-ory positions communications service providers to whom users provide location data as equal to other third-parties (i.e., the general public). Second, it treats the location data in the same way as other data to be provided to third-parties, irrespective of their peculiar characteristic of potentially exposing part of a user’s private life. Third, it regards the provision of location data as being implemented voluntar-ily by users, despite the indispensable role of cell phones for communications services in users’ daily lives. Given these elements, it would be fair to interpret that under the Constitution of Japan, commu-nications service providers are fundamentally allowed neither to disclose the location data to public authorities without due cause and process nor to investigate nor utilize them for their own purposes beyond the scope of necessity for the provision of communications services.
