(3) On whether the Information Gathering Activities violate Article 14 of the Constitution
A) The plaintiffs allege that the Information Gathering Activities target Muslims by exclusively directing attention to their religious affiliation, and thereby constitute discrimination based on “creed” that is prohibited by the second sentence in Article 14 Clause 1 of the Constitution.
a) To be sure, of the Data, the document titled “Outline for Reinforcing Reality Assessments” (1 of Exhibit A-1) states that “Muslims with nationalities of the Organisation of Islamic Conference (OIC) countries and others” are “Targets of Reality Assessments”, and accordingly, it can be held that the police, at least at the preliminary stage, determined subjects of the reality assessment by directing attention to whether or not they were Muslims. Therefore, the fact that they had made a distinction in treatment by focusing on faith on this point cannot itself be denied.
Further, as Article 14(1)of the Constitution is interpreted as prohibiting discriminatory treatment unless there are reasonable grounds corresponding to the nature of the matter (Supreme Court 27 May 1964 Grand Bench, Civil Cases in the Supreme Court, Volume 18, Issue 4, Page 676 ; Supreme Court 4 April 1973 Grand Bench, Criminal Cases in the Supreme Court, Vol. 27, Issue 3, Page 265 et alibi.) As the second sentence explicitly disallows discrimination by reason of “creed”, and in view of the importance of religious freedom as one of the spiritual freedoms guaranteed by the Constitution, it is necessary to examine closely whether or not there is reasonable cause for separate treatment on the basis of religion.
b) Upon analysis, (i)the Information Gathering Activities primarily targeted Muslims and collected information touching on the comings and goings at mosques, a matter with a religious aspect, not by taking issue with Muslims’ faith itself, but instead by directing attention to the historic realities of international terrorism, and with the intention of preventing harm to the general public by detecting and guarding against international terrorism by radical Muslims, as opposed to meddling in the spiritual and religious aspects of Muslims; (ii)assessing the plaintiffs’ religious activities etc. including circumstances of their mosque attendance through the Information Gathering Activities was a necessary activity for the prevention of international terrorism belonging within police duties; and (iii)what effect this had upon religious liberties of the plaintiffs, if any, remained within the realm of repulsion against the presence of police officers in and around the mosques, as elaborated in the above (2)B(e).
c) It then follows that even considering that distinctions were made in this case based on creed as explicitly listed in the second sentence of Article 14(1) of the Constitution, and the weight that freedom of religion carries as one of the freedoms of spirit, the different treatment had reasonable cause, and did not violate the clause in question.
B) The plaintiffs allege that despite Article 14 of the Constitution guaranteeing the right not to be discriminated against, and the State owing a duty not to promote discrimination when engaging in conduct with the effect of promoting discrimination, the Information Gathering Activities were based on prejudice that Muslims are terrorists or have a high possibility of being one, and amounted to the State conveying a discriminatory message, thereby having the effect of promoting discrimination against Muslims, and violating the plaintiffs’ right not to be discriminated against.
However, as the distinctive treatment in the Information Gathering Activities has reasonable grounds as explained in above A, and as it is clear from the format etc. that the information collected by the said activities was not expected to be disclosed to the outside world, it cannot be said that the Information Gathering Activities in themselves give off a discriminatory message on part of the State.
On this point, the plaintiffs allege that even if it remains information collected and stored by the police, the danger of leaks is omnipresent, and once a leak does take place, it sends a strong message to the public that the police treat Muslims in a discriminatory matter. Yet this points back to the illegality of allowing the leak, and cannot form a basis for the unconstitutionality or illegality of the Information Gathering Activities as strictly construed.
Further, the plaintiffs allege that in light of Articles 13 and 14 of the Constitution, the plaintiffs have a legal interest in not being treated in a discriminatory manner by the State, which was violated by the Information Gathering Activities, but this line of argument cannot be accepted in light of the above explanations.
Therefore, the plaintiffs’ above arguments cannot be accepted.
(4) On whether or not the Information Gathering Activities violate the freedom of not having information regarding the content or activities of one’s faith collected and managed by government institutions without just reason (Article 13 of the Constitution)
a) That some plaintiffs had their access to mosques or participation, if any, in religious ceremonies and educational activities noted in their Résumé-like Pages, or their missionary passion specifically noted in the “Suspicions” section of the Identification and Suspicions Pages, were found in above (1)B. Not only do these entries suggest that they are Muslims; they go further by indicating the strength of their convictions. Whatever thoughts or beliefs that a person holds are matters that directly affect an individual’s interior world and personal autonomy, and is a type of information that is ordinarily unexpected to be disclosed without consent in social life.
b) However, that the prior prevention of international terrorism necessitates assessment of the realities surrounding mosque attendees, and the fact that this can only be achieved in the form of continuous assessment, to a certain degree, of their activities through a presence not only around but at times inside mosques, was explained in above (2)B(d) and (e). Furthermore, as suspicions have arisen that Lionel Dumont, who was arrested in Germany in December 2003, had been obtaining financing for terrorist acts and engaging in the procurement of supporters while taking cover in Japan under a counterfeit passport as recognised in above (2)B(c), and as the United Nations adopted an international treaty in 1999 regarding the prevention of financial assistance for terrorism, and in light of facts such as that on 22 October 2004, the FATF (Financial Action Task Force on Money Laundering) delivered a special recommendation regarding terrorist financing, providing a nine-point fundamental framework for the detection, prevention and deterrence of terrorism and financial provisions thereof, upon the understanding that actions against financial supplies for terrorism are crucially important ((1) and (2) of Exhibit B-8), it can be said that surveying mosque attendees for terrorist supporters, such as funders of terrorism, is an information-gathering activity necessary for the prevention of international terrorism incidents. If so, it ought to be said that the police, who are under the obligation of maintaining public safety and order under Article 2 (1) of the Police Act, are required to probe and analyse the current state of social affairs, including religious activities, for each person accessing mosques, as a part of information-gathering attempts for the prevention of international terrorism.
At the same time, the Mosque Monitoring Activities took the form of agents themselves going to mosques and observing external conduct readily recognisable from the outside, such as the plaintiffs’ comings and goings at mosques and circumstances of their participation in religious ceremonies and educational activities. In this sense, it cannot be said that the plaintiffs’ behaviour thus assessed was not at all expected to be recognised by a third party, and even considered in the totality of the Information Gathering Activities, these did not demand the plaintiffs to prove their faith, nor did it impose prejudicial treatment or any coercion, impediments or restrictions in religious terms, their possible effects confined to the plaintiffs’ sentiments of repulsion triggered by police presence around or inside mosques.
On this point, the plaintiffs allege that plaintiffs 5 and 16 were subjected to illegal searches and seizures that deviate from and abuse the rules of criminal procedure, in relation to a case with a third party suspect. Indeed, according to the facts (11(4) and 1(4) of Exhibit A-1), it can be found that searches and seizures of mobile phones etc. were conducted against plaintiffs 5 and 16. However, there is insufficient proof that these searches and seizures were illegal, so the plaintiffs’ arguments cannot therefore be accepted.
Additionally, in light of the gravity of the damage once an incident of international terrorism occurs, even considering that the plaintiffs’ information gathered through the Information Gathering Activities would not ordinarily be expected to be disclosed without their consent in social life, it should be said that the Information Gathering Activities were necessary and inevitable from the point of view of preventing international terrorism.
c) Therefore, the plaintiffs’ submission that the Information Gathering Activities violated Article 13 of the Constitution cannot be accepted.
B) The plaintiffs further allege that the Data contains information of the plaintiffs’ nationalities, domicile, criminal history etc., which can be grounds for social discrimination, and thus amounting to sensitive information. Accordingly, they can be understood to be arguing to the effect that the collection of information other than those relating to the substance and activities of their faith also violate the freedom of not having their personal information collected and managed without reason. It can certainly be said that these information amount to the plaintiffs’ privacy, with criminal history particularly relevant to a person’s honor and reputation.
However, in light of the fact that there is sufficient danger of international terrorism happening in Japan, and the difficulties in its prevention through obtaining information regarding terrorist plots, or detecting terrorists concealing themselves amongst the general public, the Information Gathering Activities are necessary to prevent the occurrence of international terrorist attacks in advance and requires the compilation of various information, as explained above in (2)B. Consequently, even if the plaintiffs had not only information of the substance and activities of their faith but also information regarding their privacy including criminal records etc. collected through the process of the said activities, such constraints are inevitable in light of the above nature etc. of the Information Gathering Activities. What is more, as for the manner of the profiling, it can be conjectured, as elaborated in above (1)C, that the information was collected through cooperation with related agencies or police contact and searches etc. on the plaintiffs, which cannot be called illegal or particularly inappropriate. Hence, the Information Gathering Activities cannot be said to violate Article 13 of the Constitution.
(5) On whether the retention of personal information by the Metropolitan Police Department and the National Police Agency violate Article 13 of the Constitution
A) The plaintiffs allege to the effect that the retention of the plaintiffs’ personal information, by entry into the police database, itself violates the right not to have information related to an individual disclosed or released to a third party unreasonably, as guaranteed by Article 13 of the Constitution.
However, information-gathering activities are conducted in order to store and analyse the information thus obtained, and it has been previously established that the Information Gathering Activities do not violate Articles 13 and 20 of the Constitution. Because it naturally follows that the police may keep and use for analysis etc., information obtained through legal activities, the possession of said information does not violate Article 13 of the Constitution.
B) On this point, the plaintiffs allege, among other things, the existence of a specific danger of disclosure or release of personal information to third parties in the event of flaws in the system technology or legal regime of an information management mechanism, citing a 2008 Supreme Court case, and points out that this very case came to light by such a leak, in other words, as a result of the risk of information being readily leaked actually materialising.
However, this allegation merely argues the illegality not of the police’s possession of the plaintiffs’ personal information in itself, but the fact that the information was disclosed or released to third parties: namely, the occurrence of the Incident. Moreover, although the 2008 Supreme Court case, in considering whether or not the Basic Residential Registers Network System violated the freedom of not having information relating to an individual disclosed or released to third parties unreasonably, assessed, inter alia, the specific dangers, if any, of information leaks due to breaches etc. in the mechanics of the System, this derived from the fact that the substance of the claim in said suit focused on a deletion of the resident’s card code based on the removal of an impediment against the right to personhood, distinguishable from the present case regarding a claim for State compensation on the premise that a leak has actually happened, and therefore it cannot be appropriately applied to this case.
C) Therefore, the plaintiffs’ argument cannot be accepted.
(6) On whether or not there is a violation of the due process principle
The plaintiffs argue that the continuous, systematic, comprehensive, and large-scale collection, storage and use of personal information as in the Information Gathering Activities require a law that explicitly states specific objectives and standards to be met, and that Article 2 (1) of the Police Act does not serve as such a basis.
However, in light of the fact that Article 2 (1) of the Police Act designates the “prevention of crime” and “otherwise maintaining public safety and order” as police duties, the various police activities these necessitate should generally be tolerated as long as they are voluntary measures without compulsion, and it has already been established that the Information Gathering Activities are necessary activities in light of the above duties.
When the information to be collected relate to matters that risk interference with people’s rights and freedoms, activities for the collection of such information should not be permitted unconditionally. However, the Information Gathering Activities are necessary and inevitable from the viewpoint of preventing international terrorism, as also previously explained.
Therefore, the plaintiffs’ above argument cannot be accepted.
(7) On whether or not the gathering, retention and usage of the Personal Data violate the Act on the Protection of Personal Information
(8) On whether or not the gathering, retention and usage of the Personal Data violate the Local Ordinance on the Protection of Personal Information
Consequently, as no part of the collection, storage or use of personal information by the Metropolitan Police Department and the National Police Agency can be found unconstitutional or illegal, no illegality can be found for the purposes of the State Compensation Act.