Legalizing wiretapping in Japan

[seiji.imai@nuernberg.netsurf.de (Seiji Imai)]

Following essay is an editorial by Mainichi Shinbun, one of the major
Japanese daily news papers (from its English Home page). URL is
http://www.mainichi.co.jp/mdn/opi1.html

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Legalizing wiretapping

The Justice Ministry on Tuesday referred to its Legislative Council legal
amendment initiatives addressed to organized crime. Of the several proposals
drafted by the ministry, we are most concerned about the law which would
allow law enforcement authorities to wiretap and bug suspects of serious
criminal activities.

The ministry maintains that this initiative is to bring investigations into
crimes that are increasingly becoming sophisticated in step with the
development of telecommunication technology. But critics already point to
the danger of human rights abuses, citing a case of illegal police
wiretapping several years ago conducted on the telephone at the home of a
senior member of the Communist Party.

The plan calls for the legalization of wiretapping, subject to court
warrant, in the investigation of felonies carrying the death penalty and
life imprisonment and involving drugs, guns and kidnapping. At the same
time, the ministry is reported to be considering the following requisites to
these provisions: 1) a designated crime has been committed or is about to be
committed; 2) telecommunications related to crimes; and 3) circumstances
where no other investigative methods will work.

While strict restrictions must obviously be set for any criminal
investigation, the issue is not simple when it comes to wiretapping and
bugging. Electronic eavesdropping almost certainly enables the investigators
to listen into communications involving an innocent third party. Tapping
into personal computer communications will most likely make an enormous
amount of private, innocent information available to the investigators. It
is reported that in the United States most of the information collected by
computer eavesdropping in criminal investigations have turned out to be
irrelevant.

On the other hand, experts say that the growing internationalization of our
society is making crime intelligence gathering and control more difficult.
Many countries in Europe, in addition to the United States, have legalized
wiretapping by law enforcement agencies.

But Article 21 of our Constitution says that secrecy of any means of
communication shall not be violated. Article 35 says that the right of all
persons to be secure in their homes, papers and effects against entries,
searches and seizures shall not be impaired except upon warrant issued for
adequate cause and particularly describing the place to be searched and
things to be seized.

It is likely that wiretapping and bugging run counter to the Constitution.
In addition, the Telecommunications Business Law provides for the protection
of privacy of communications, while the Criminal Procedure Act details terms
of warrants. How the wiretapping initiative will meet these legal barriers
remains to be seen.

In fact the police have already conducted wiretapping in cases of
amphetamine trafficking. In the absence of a legal provision, the police
carried out the operations by stretching the provision of verification
under the Criminal Procedure Act. The court rejected the defense argument of
unconstitutionality and ruled that the tapping was legal, saying that the
police acted on high probability that the telephone conversations
monitored were exclusively devoted to the trafficking.

Be that as it may, legalized wiretapping, however strictly restricted at the
outset, could lead to wide abuses by authorities, eroding the very base of
democracy.

(From Mainichi Shimbun, Oct. 9)

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