Issues | LAW OF THE LAND

Bureaucrats are to blame for copy-happy hotel clerks

by Colin P.A. Jones

Contributing Writer

Data privacy is a big thing now, and more and more people are rightfully concerned about unwarranted efforts to collect their personal information. One example of this occurs whenever a non-Japanese guest checks into a hotel in Japan and the person at the front desk asks if they can photocopy their passport.

At risk of covering well-trodden ground, I thought it would be worth devoting a column to the question of whether it is legal for hotels to take a photocopy of your passport or residence card when you check in. It turns out that this topic is a useful vehicle for demonstrating how Japanese law works, particularly with regards to regulated industries.

The black letter law

The industry in question here is the hotel business. The principal regulator is the Ministry of Health, Labor and Welfare, and the key law is the Hotel Business Act (HBA). There is a separate “minpaku” law for Airbnb-type lodgings that I will ignore since the rules are basically the same.

Article 5 of the HBA says innkeepers may not refuse service unless a person: (i) has an infectious disease, (ii) might use the hotel room to gamble or engage in other illegal or immoral behavior, (iii) the hotel has no vacancies (duh!), or (iv) other grounds specified in prefectural ordinances. Article 6 requires hoteliers to maintain a ledger recording lodgers’ addresses, occupations and “other information” required by ministry regulations.

The law contains no provisions singling out non-Japanese guests for special treatment, nor does it require photocopies of any documents. Some critics have thus declared the practice “unlawful” and suggested having a copy of the law available so you can cite it when fighting back while checking in. I don’t believe this approach is productive because it fails to appreciate a basic feature of many Japanese statutes: They are not written with you in mind. Laws such as the HBA are passed by the Diet but are written by the same people who implement them — bureaucrats.

The Ministry of Health, Labor and Welfare drafts its laws in a rational way that helps it do its job, which is to regulate the hospitality industry — not to smooth the process at the check-in counter. The laws that govern an industry (like the HBA) leave much of the detail to the ministry’s discretion, which can be exercised through rule-making or administrative guidance. If we descend down the heirarchy of Japanese rules to the rules passed by the ministry under the HBA — the Hotel Business Act Regulations — we find additions to the type of information that must be filled in the guest register: the nationality and passport numbers of foreign guests who do not have an address in Japan, and “other information required by prefectural regulations.” At this point, there is still nothing about residence cards or taking copies of anything.

The HBA and ministry regulations delegate further rule-making and administrative responsibilities to the licensing authorities at the governments of prefectures and major cities, including the wards of Tokyo. This means there are numerous ordinances passed by prefectural and municipal assemblies, and rules issued by governors about matters relating to local hotels. Most seem similar in character. Some add additional grounds for hotels to refuse service: being drunk, dirty or any other situation where a person seeking lodging might cause meiwaku (annoyance) to the other guests. Some have caught up with the requirement that the guest ledger include passport information for nonresident foreigners, but still don’t mandate photocopying.

Going even further down the hierarchy of rules takes us to the ministerial tsūtatsu (written directives). These are issued by ministries (or other regulators) to those charged with implementing regulations. Often containing interpretive guidance, tsūtatsu are powerful tools that can be used to significantly bend —though not quite break — the laws or regulations under which they are issued. A vast amount of tax law is actually based on interpretative mandates contained in National Tax Agency tsūtatsu. An indicator of the power of these written directives can be seen in a 1952 notice from the Ministry of Justice interpreting the effect of the Treaty of San Francisco on Japan’s former colonial subjects, which resulted in the nation’s ethnic Korean population no longer being treated as citizens.

A Dec. 19, 2014, tsūtatsu from the Ministry of Health, Labor and Welfare that was issued to prefectural and municipal authorities responsible for hotel oversight instructs that, in order to ensure information is recorded in guest ledgers properly, copies should be taken of the passports of nonresident foreign guests. It also directs that if one of these guests refuses to proffer their passport the police should be contacted because it means they might not have one, which would be against the law.

Ready to hit the hay: Your bed awaits, you may just need to produce some identifying documents first. | GETTY IMAGES
Ready to hit the hay: Your bed awaits, you may just need to produce some identifying documents first. | GETTY IMAGES

Input from the police

So there you have it, copies of passports are required because the ministry says so.

So do the police, apparently, as the Dec. 19, 2014, tsūtatsu also shows signs of interagency grumbling. It attaches a notice from the National Police Agency dated Oct. 30, 2014, that essentially complains to the Ministry of Health, Labor and Welfare that — despite earlier directives issued by the ministry on Feb. 9, 2005, and Oct. 18, 2007, reminding hoteliers to take copies of passports — compliance was still inadequate. As you might expect, the police agency missives don’t seem to care much about the hotel business, but were rather more concerned with being suitably vigilant against terrorism (“etc.”) in light of the large number of overseas visitors expected at the then-pending G7 Ise-Shima Summit in 2016, and the 2020 Tokyo Olympics after that.

The police have a say because, well, terrorism! More prosaically, under the Police Duties Execution Act, cops are empowered to demand entry into hotels for the purpose of preventing crimes or other danger. More generally, under Article 197 of the Code of Criminal Procedure, “public or private organizations may be asked to make a report on necessary matters” relating to investigations by law enforcement personnel. In other words, police officers are entitled to certain information about those staying at hotels, don’t need a warrant for it, and have an interest in it being available, legible and accurate.

Check the manual

Having reached the lower yet paradoxically more important levels of hotel regulation, we can now turn to the document containing the only rules most front desk staff might actually read: the manual.

Japanese regulators sometimes produce entire manuals instructing how a particular type of business should be run. For hotels this seems to have been done only sporadically by some municipalities. Nonetheless, the manual produced by Tokyo’s Minato Ward is instructive. It lists the categories of information that must be recorded in the guest ledger and affirms the Ministry of Health, Labor and Welfare’s (really, the police’s) requirement that copies be taken of passports of nonresident foreign guests. It also advises hotel staff that guests who refuse to submit their passports can be presumed to intend to engage in illegal behavior, and thus refused service as per the HBA. The guidelines produced by the city of Osaka do not contain this helpful presumption of guilt, but do instruct hoteliers to cooperate with cops who want to see guest ledger details, no paperwork required.

Now, you may find it disturbing that bureaucrats can write benevolent-sounding top-level laws while quietly reserving for themselves broad rule-making and interpretive authority that enables them to bend the law as they deem necessary at the implementation stage. Yet, if given the ability to make rules for other people that maximize your own freedom of action and don’t affect you in any way, wouldn’t you do the same thing? It’s all very rational once you stop thinking the laws might be for your benefit.

Regulators get away with this sort of thing because Japanese courts rarely second-guess them. Supreme Court cases overturning agency rule-making or interpretation are rare. Engaging in almost any type of regulated business in Japan thus means agreeing to do whatever your regulator says — legal foundation be damned. Most people appreciate that challenging a regulator in court is potentially suicidal. No hotel is going to go to court for you because you think police and health regulators are exceeding their mandate in copying your passport.

In any case, taking copies of foreign visitors’ passports seems a common practice around the world, so what’s the big deal? The real issue in Japan is hotels trying to get you to show or take copies of your residence card when you do have an address in Japan. Here you can probably win, but you don’t need a copy of the law for that; the Ministry of Health, Labor and Welfare’s recently updated website FAQs for hoteliers is likely to be more persuasive, since it clearly states: “Prefectural or municipal governments may request it as necessary, but since there is no legal basis for doing so, a guest who refuses may not be compelled to do so.”

They might have also mentioned that taking a copy of your residence card once you have established you are a resident would constitute the unnecessary acquisition and retention of your personal data in violation of the Personal Information Protection Act. This is likely grounds for complaining to the government’s Personal Information Protection Commission.

Or you can avoid the whole debate by staying at one of Japan’s many fine love hotels. The business model in that sector of the lodging industry seems heavily dependent on clientele remaining anonymous, and regulators seem oddly OK with that. Still, I have yet to find any regulations or tsūtatsu granting an exception for hotels with hourly rates, so the honest thing to do at such establishments might be to thunder around the lobby, loudly demanding in accented Japanese or English that someone take a copy of your ID. It’s the law, after all.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto and primary author of “The Japanese Legal System” and “The Japanese Legal System in a Nutshell” (West Academic Publishing, co-authored with Frank Ravitch). The views expressed are those of the author alone.

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