Dongsheng Zang, Privacy And National Politics: Fingerprint and DNA Litigation in Japan And the United States Compared, 43 Pace L. Rev. 255 (2023), https://digitalcommons.law.uw.edu/faculty-articles/1037
privacy, DNA evidence, Japan, United States, Fourth Amendment, politics
Drawing cases from two related areas of law-fingerprint and DNA (deoxyribonucleic acid) data-this Article proposes a modified framework, built on the Balkin-Levinson emphasis on national politics: First, national politics understood as partisan rivalry cannot account for what I call doctrinal lock-in in this Article, where I will demonstrate that in different stages of American politics-the Lochner era, the New Deal era, and Civil Rights era-courts across the nation ruled predominantly in favor of public data collectors-state and federal law enforcement in fingerprint cases. From the 1990s, when DNA data became hot targets of law enforcement, the United States Supreme Court followed the path of fingerprint law. In other words, what is striking in fingerprint and DNA cases in the United States is not doctrinal flip flop, but doctrinal continuity-despite the change of regimes and dominant parties.
Second, the phenomenon of doctrinal lock-in demands reframing the concept of national politics. This Article proposes to redefine national politics as the interaction between the establishment (the regime) and external challenge. The doctrinal lock-in reveals the limited ability or willingness of the establishment to take up the question of privacy in the political process thus respond to the demands from society at large. To illuminate this point, a comparison with a multiparty democracy can be helpful. Conventional comparative law on privacy focus on Continental Europe. However, this Article chooses Japan, an even better example for this purpose because Japan's judiciary is well known for being conservative or weak. In Japan, the notion of privacy came much later than that in the United States-it was established in 1964 by a Tokyo District Court ruling. However, in the 1970s and 1980s, privacy was transformed from a tort law to a constitutional issue. While the transformation was driven by a broad and general constitutional awakening in the Japanese society, privacy became more politically charged when fingerprint became the focal point of agitation in the "fingerprinting refusal movement." The movement was spearheaded by the Zainichi Koreans who fought for constitutional recognition of privacy in fingerprints. Litigants were joined by lawyers and bar associations who helped frame their arguments, support groups and journalists who gave voice to their perspectives, as well as historians who dig out the secret connection of fingerprint with Japan's colonial past. The refusal movement became Japan's civil rights movement. In this context, the Supreme Court of Japan recognized fingerprint privacy as a constitutionally protected right in 1995. More recently, a Nagoya district court ruled in favor of a plaintiff who requested police to expunge his fingerprint and DNA data after acquittal. This was an unprecedented ruling in Japan's history. No doubt that the Nagoya ruling is an outlier, but it shows that courts in Japan, under certain conditions, are responsive to social demands, and in doing so, they are open to the high level of protection of privacy on par with European standards.
Third, the contrast between the judicial lock-in in the United States and the responsive courts in Japan begs explanations that go beyond the Balkin-Levinson framework. Further studies are needed to understand why the United States is lagging behind in responding to privacy compared with other Western democracies. This Article aims to contribute to this inquiry by proposing a tentative hypothesis in the relationship between national politics and privacy: in Japan, when privacy becomes political, it creates pressure on the establishment, thus forces the judiciary-however conservative it is-to accommodate social demands in order to maintain public trust. By contrast, in the United States, when none of the political parties is willing to take up privacy, privacy remains apolitical, leaving the judiciary shielded from the pressure from society at large.