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[FYI] (Fwd) Paper on Internet privacy and free speech in Japan

------- Forwarded message follows -------
Date sent:      	Mon, 6 Nov 2000 14:10:50 -0500
From:           	"Christopher Chiu" <cchiu@aclu.org>
Subject:        	Paper on Internet privacy and free speech in Japan
To:             	"GILC plan" <gilc-plan@gilc.org>
Copies to:      	"Toshimaru Ogura" <ogr@nsknet.or.jp>
Send reply to:  	gilc-plan@gilc.org

Ladies and gentlemen:
I am posting this item on behalf of Professor Ogura (from NaST). He
has written the following paper to document various issues regarding
Internet privacy and free speech in Japan. Please send any comments
directly to him at ogr@nsknet.or.jp

Christopher Chiu
Global Internet Liberty Campaign Organizer
American Civil Liberties Union
125 Broad Street
New York NY 10004-2400
Tel.: 212-549-2535
E-mail: cchiu@aclu.org

Toward Global Communication Rights: Movements against Wiretapping and
Monitoring in Japan

Toshimaru Ogura
Japanese Net Workers against Surveillance Taskforce (NaST)
Oct.30, 2000 (revised)

Note: These remarks were originally presented at a meeting organized
by Jinbo Net on Oct 18th and an ASEM People's Forum in Korea on
Oct.19, 2000.

I would like to talk about three things.

The new Japanese wiretapping law and our struggle against it,
The current system for monitoring communications in Japan, and
Regulation and censorship of the Internet.

I will then propose several basic principles to free our
communications from the restrictions that we presently face.

------ -------------------- About the Japanese Wiretapping Law and the
struggle against it
------ --------------------

The Japanese Communications Interception Law was passed in August 1999
and has now taken effect. Among other things, the new statute allows
Japanese law enforcement officials access to private e-mail accounts
if they are investigating certain types of crime, which can even
include immigration-related offences. The measure had received
negative reviews from many quarters, ranging from opposition party
leaders to computer scientists. Indeed, polls showed that a majority
of the public did not support the bill and feared that the new
standards would have a deleterious effect on individual privacy.

The Diet (Japanese parliament) approved this wiretapping bill through
a highly unusual process. In particular, the ruling parties forced a
sudden vote through the Justice committee in the House of Councilors
even though there were many issues that had yet to be discussed. Not
surprisingly, members of the opposition parties appealed strongly
against voting and the committee meeting fell into confusion. Nobody
knows when the vote took place or what the result was. In fact, the
minutes did not even mention the vote at all. And in plenary session,
the chairperson decided to break off the discussion and forced a vote
there as well. The Liberal Democratic Party, which is part of the
ruling coalition, was irritated because the Diet had carried the bill
over for consideration at the next session several times already.
These delays were mainly due to intense opposition from a variety of
organizations, including human rights groups, network activists, trade
unions, journalists, and even members of the legal community such as
Japan Bar Association. We organized conferences about privacy and
wiretapping investigation several times. People began to realize that
the bill would not stop hardened criminals but rather would violate
the privacy of ordinary citizens. The ruling parties soon realized
that if consideration of the bill were postponed until the next
session, it would probably be rejected.

According to many legal experts, the legislative process by which the
Communications Interception Law was passed is clearly
unconstitutional. In spite of this, we could not stop the bill from
being passed. However, because of the increased public awareness of
this new law and its problems, the National Police Agency (NPA) and
the Ministry of Justice (MOJ) may not be able to use the law freely as
they had hoped, or at least in a way that would be as invasive of
individual privacy as we had previously feared.

After the bill was approved by the Diet, we took several actions.
First, we started a petition drive against the wiretapping law. In
just a few months, we gathered over 200,000 signatures. Subsequently,
opposition parties repeatedly submitted proposals to abolish the new
wiretapping law.

Second, Yuu Terasawa, a journalist, sued last spring to have the
wiretapping law declared unconstitutional. The first trial judgment
was expected by the end of September, but the court threw out the
lawsuit on procedural grounds. (*1)

Third, we sought complete disclosure of budgetary and technical
details regarding the government’s wiretapping plans. In order to
explain the disclosure action, I would first like to talk more about
how this new wiretapping statute will be implemented.

The Communications Interception Law creates several specific problems
from a civil liberties perspective. According to Japanese government
interpretations of this new statute, law enforcement agencies have
been given a free hand. For example, the law has no precise definition
of what devices can be used for wiretapping; therefore government
officials can use whatever tools they see fit, regardless of the
potential impact on individual privacy. They can duplicate freely the
wiretapping records gained in one investigation for use in other
investigation, without the need to get permission from a court. There
are no restrictions on the use of these records for database purposes,
which might allow the government to compile large dossiers on ordinary
law-abiding citizens. And what is worse, according to testimony
presented in hearings before the Diet, government agents may hand off
the wiretapping records to foreign law enforcement agents; such
activities are considered legal and not a privacy violation.

In fact, since the Diet passed the wiretapping act, the NPA and the
MOJ have tried to use these interpretations of the law to justify
additional activities that may further erode individual rights. For
example, the NPA and DOJ have switched from analog cassette tape to
digital audio tape (DAT) for computer Data as way to store wiretapped
communications. In addition, a so-called "temporary mailbox" will
replace floppy discs as a wiretapping device for e-mail. The NPA is
asking for 140,000,000 yen (about 1,400,000 US dollars) for
wiretapping of the Internet in their budget for next year. The most of
the additional expenditures are for the "temporary mailbox".

What is this "temporary mail box"? I do not know precisely, but
according to the NPA, this "temporary mailbox" is a device that will
be lent out to Internet Service Providers (ISPs). A given ISP would
have to tap targets using this "temporary mailbox". As the NPA has not
disclosed details on this "temporary mailbox", I cannot say how many
devices the NPA will be able to purchase under this new budget and how
this temporary mailbox will function. But I suspect it will work in
the same way as the Carnivore device used by the United States Federal
Bureau of Investigations (FBI) or the systems envisioned under the
British Regulation of Investigatory Powers (RIP) bill. We intend to
make NPA and MOJ disclose more details regarding this "temporary

I think Japanese law enforcement officials have learned a lesson from
the very strong opposition movements in the US and Britain against
wiretapping plans such as the Communications Assistance for Law
Enforcement Act (CALEA), Carnivore and RIP bill. If the Japanese
government has its way, even if an ISP refuses to abet would-be
wiretappers, law enforcement agents will still be able to access
private communications all by themselves (without the help of ISPs)
using their "mailbox".

In addition, the Japanese wiretapping law allows the police to wiretap
outside of a common carriers office if permitted by a court, because
the law does not forbid surveillance of entire networks. This applies
not only the Internet but also to telephone calls in general. For
example, Japanese communications conglomerate NTT has a system of for
investigating line failures called Cultus. By accessing Cultus and
inputting a given target phone number, one can eavesdrop on the
targeted person’s communications. This system is networked throughout
the country. NTT technical employees usually use this system via
network by plugging in a notebook Personal Computer running Windows
95. Now the police are planning to commandeer Cultus, a service system
of NTT, for their own wiretapping investigation.

This has been a short explanation of what kind of technology the NPA
uses for wiretapping. Unfortunately, the NPA refuses to make public
the circuit diagrams and computer programs of the wiretapping devices
above mentioned. I suspect that since these devices are computers that
can run many types of programs, law enforcement officials can build in
any kind of program from the back, so that we will not be able to
check precisely what kind of software is installed. Thus, even if we
can check the devices at the beginning, such scrutiny will be
meaningless because government agents can install new and more
powerful software later or delete them. For this reason, we insist
that the NPA and DOJ should disclose details regarding the underlying
software, and that these devices have to be fixed in such a way that
they cannot be extended or further networked until there has been
sufficient time for adequate review of the potential privacy
implications. Not surprisingly, both the NPA and the MOJ have so far
rejected our requests.

By definition, the Communications Interception Law violates the
privacy of ordinary people. This is clear from the experiences of
foreign countries where wiretapping is legal. But the Japanese
government still claims otherwise. Their first argument is that
wiretapping investigations are legal in the major democratic
countries, so it stands to reason that these activities do not violate
individual privacy. Their second argument is that, in order to deal
with the internationalization of crime, the Japanese police must enact
this new law to allow international coordination of criminal
investigation. Their third argument is that the wiretapping
investigations are effective and indispensable against major organized

These claims are very deceptive. For example, we know that in the
United States, wiretapping investigations bring about huge violations
of privacy. According to U.S. government wiretapping reports, about 80
% of tapped phone conversations are not related to criminal activity.
Moreover, there are a lot of wiretapping efforts that go unreported.
In addition, wiretapping alone has had few measurable effects on the
rate at which major organized crimes take place. (*2)

Besides this, in comparing American experiences regarding wiretapping
investigations with the Japanese situation, we know that Japanese
courts may only be able to provide a loose and low standard of privacy
protection. Judges who issue wiretap orders may not be able to
intervene during the investigation. Judges do not have an obligation
to check the records that law enforcement officials compile. Law
enforcement agents may use pen registers without a court order, and
may also be able to capture the underlying communication (even if that
communication, in and of itself, would have been protected) so long
agents believe the communication is relate to any kind of crime.
Furthermore, law enforcement officials need not pay for any services
rendered by common carriers on behalf of their wiretapping efforts; on
the other hand, the latter has to support the former in abiding by the
wiretapping law. (*3)

In its budget for the next fiscal year, the NPA is also asking for
recording media (DATs) for voiceprint analysis. From the details of
budget request, I believe all DAT tapes that the police record in
wiretapping investigations are passed along for voiceprint
identification.  This indicates that the NPA intends to build a
database of voiceprints.

The NPA and MOJ claim that they use wiretapping laws for the
investigation of crime, not for surveillance of ordinary people or
politically active groups. They insist they will not violate the
privacy of persons who are not criminal suspects. However, this
contradicts a scenario that they themselves provided in the Diet
discussion last year—a scenario that exposes their own inconsistent
positions. The MOJ suggested that it would be legal for them to
intercept all communications regarding ship reservations because these
communications could involve drug smuggling. In this case, telephone
and mail servers for customer service of a shipping company would
become a target for wiretapping. Unfortunately, this means all phone
calls to the customer service center will be tapped, traced and
compared using voice identification database information by the
police, including calls from people who have no connections at all to
the suspected drug smugglers. (*4)

Big Brother in Japan

Before the wiretapping law was approved, law enforcement agencies had
already carried out many illegal wiretapping investigations. In
particular, the Japanese secret police, known as the Public Security
Police, have used wiretapping to monitor political movements. While
the facts regarding such illegal wiretapping are often sketchy, a few
specific incidents have been brought to light. The most famous one is
a 1986 case involving the Public Security Police and Yasuo Ogata, a
former international director of the Communist Party and now a member
of the Diet. This wiretapping lasted more than a year. Indeed, a
former employee of the manufacturer of wiretapping gear for NPA, who
drew up the blue print for these devices, testified during the Ogata
trial that the NPA had purchased many such wiretapping appliances.
This revelation begged an obvious question: why would the NPA buy
these contraptions if it was illegal to use them?

Last year, when the Diet was discussing the new wiretapping bill, the
police listened in on a conversation a TV reporter had with Nobuto
Hosaka, one of the main Diet members who was fighting against the new
proposal. This was uncovered in an anonymous letter that included a
record of the tapping that sent by a whistleblower from within the
ranks of the police force. This case is now on trial but the NPA has
made no mention of this incident.

These examples show the dangerous character of wiretapping – that this
technique can not only be used for criminal investigations, but also
for monitoring and  intimidation of communications regarding matters
of great political interest.

I would like to talk about one other important example related to such
political monitoring systems, which we should view with fear.

Among other things, the Japanese traffic monitoring system called "N
System" has created major problems from a privacy perspective.
According to Nozomi Hamashima, a journalist dealing with N System
issues, these cameras were set up in 560 places all over the country
in 1999. N System involves high quality cameras connected to a
computer network. It reads the license plates of passing cars and
automatically sends and checks the date through a computer database.
The latest model can film the faces of drivers. Therefore it is very
difficult to move about the country without monitoring by the police.
This system may not only be set up to cover high traffic areas on the
ground; it was recently instituted to cover Japan’s East Sea coast.
Hamashima points out this arrangement may check the flow of refugees
>from that area and also monitor potential threats to military
security from North Korea. (*5)

In 2002, Japanese government will introduce a new identification
system that gives each and every Japanese resident a unique
identification number. In the 1999 summer session of the Diet, the
government revised the Basic Resident Register Law on which this new
system is based. Basic personal information about residents such as
address, full name, age, sex, and so on are integrated through this
identification number. This system will increase the danger of
database cross-referencing and data matching. Based on this system,
local governments will issue the electronic ID card (with an IC chip
buried inside) as an official ID card. This IC chip has a huge memory
bank, and can therefore store ever increasing amounts of personal
data. (*6) This scheme constitutes a massive monitoring system that
utilizes the latest in information communication technology by
government and the police.

Besides the threats posed by such plans, common carriers are now
introducing increasingly similar monitoring or privacy-violation
technology under the pretext of providing better "customer service".
For example, cellular phone companies offer services that allow people
to locate the exact position of a given cellular phone owner. (*7)
Common carriers often publicize that these services and claim that it
is beneficial for children and the aged from a security view point. In
addition, these companies offer automatic caller identification
services. They market these devices as an effective way to prevent
harassing phone calls. In addition, several companies allow website
searches to find people’s addresses and names using phone numbers.
Only 10 years ago, such systems (which are now called "customer
service") were considered violations of individual privacy.

--- Censorship and restriction in the Internet in Japan

And what about the Internet? There are now more and more attempts to
regulate and restrict access to information in cyberspace. In Japan, a
Rating and filtering initiative by Electronic Network Consortium
(which is an umbrella organization of the Ministry of Trade and
Industry (MITI)) was started in 1996. This system registers and blocks
out materials based on a list of “inadequate” and otherwise “relevant”
words; according to the ENC, "inadequate words number about 6,000 and
relevant words about 26,000". Also ENC says that "[t]he filtering
function, by enabling Internet users to receive information
selectively in accordance with their requirements, is a user-friendly
information system that guarantees the users' right to know and at the
same time protect their children from unwanted information, while
respecting the rights and freedom of information providers."

While these ENC arguments seem plausible, the fact is that this
filtering system may bar adults from viewing the materials they want
to see through the Information Superhighway. And even if this system
is only applied to children, don’t they have rights as well?  How can
this system be called “user-friendly” if it prevents children from
getting the information they want? Despite claims to the contrary, the
ENC’s system does not truly respect the rights of Internet users.

The proponents of filtering software use "children" as an excuse to
regulate the contents of the Internet because the Japanese government
has never wrestled with serious sexual issues, such as sexual slaves
and rape during World War II, domestic violence and so on. The
filtering and rating system have become more than just a means of
regulation; it is also a way to limit the public’s right to access
information. This restriction not only applies to children, but also
to adults, including students and workers. (*8)

Another new area of regulative activity is related to the practice of
linking with other websites. In March 2000, the Osaka district court
decided that it was illegal to link to objectionable content located
on foreign websites. (*9) It was the first time a court had held that
linking itself was against the law even though the defendant's site
did not contain any illicit materials. If such a judgment is be
repeated or affirmed, I fear that search sites or portal sites may be
also be considered illegal, and that these web sites may be forced to
regulate themselves. Japanese law does not regard “self-regulation” by
private enterprises as illegal censorship; nonetheless, this sort of
“self-regulation” presents a serious threat to free speech.

At present, criminal investigations by the police mainly target sexual
expression. However, judging from past history, I think such a rule
will be extended and lead to self-censorship of important political
and social content.

One more example of how the government restricts speech on the
Internet by government is related to election campaigns. It is illegal
in Japan to run an election campaign using a web site. It is even
illegal in Japan to run recall efforts or campaign against candidates
through the World Wide Web (as is done in Korea). Such a regulation
would seem to be a blatant violation of citizen's rights. Yet there is
hardly any interest in this problem either >from the ruling party or
the Opposition in the Diet.

Moreover, Japanese rules regarding the Internet tend to be more severe
than the standards that are applied to the print media. Thus, current
trends in the Japanese communication environment are toward visible
regulations which have hurt "freedom of expression" and toward largely
invisible surveillance systems (for wiretapping and various monitoring
system) that threaten individual privacy.

I think there are several reasons why the Internet freedom of
expression in Japan is at such a low ebb. One reason is related to the
way the Internet is governed. Internet governance systems are very
important in determining the how vibrant the Internet will be, not
only within specific nations but on a global scale. This is especially
true in Japan, where there has been a history of very severe
censorship before and during World War II. We then experienced another
form of censorship: restrictions of our right to communicate through
(1) rigid marketing structures the sale and distribution of books and
(2) formal licensing systems for radio and television. To be precise,
we may produce any books we like, but we cannot distribute them to
most bookshops, because big distributors have monopolized the
circulation of written materials. Nor can we easily get a radio or TV
broadcasting license even though the set up cost is much less than the
cost of publishing books. These rules do not restrict the production
itself but regulate the distribution. I fear that the same thing will
occur on the Internet. In other words, we may have the freedom to
create web sites, but we will face of one of two problems: either (1)
everyone will be barred from accessing our websites, or (2) everybody
can access our websites, but visitors will be subjected to intense
government surveillance.

------ ----- Political Context of wiretapping and monitoring system
------ -----

I want to revisit the new Japanese wiretapping law once more from a
political and military viewpoint.

The new Japanese wiretapping law has strong political implications. It
is not only a violation of individual privacy rights, but a violation
of human rights in general, including freedom of thought and political
practices. This is clear when you consider the following reasons.

The U.S. government apparently has recognized that the Japanese
Communications Interception Law indirectly affects American interests.
In May of last year, the American Civil Liberties Union (ACLU)
requested documents under the Freedom of Information Act regarding any
discussions that the Japanese and the U.S. governments have had about
the Japanese wiretapping bill. Subsequently, the United States Central
Intelligence Agency (CIA) refused to reply to the ACLU, claimed that
the release of such information might affect U.S. national security.

In other words, this decision by the CIA suggests that the United
States considers Japanese wiretapping to be a matter of national
security. If this is the case, I think it also means that the passage
of this statute may also be related to a global surveillance
network—ECHELON. Japan is apparently involved in ECHELON activities.
According to intelligence expert Jeffery Richelson, the Japanese Army
is in charge to gather military information of the East Sea area. (
*11) Note, too, that the new Japanese surveillance standards targets
"illegal migrants" as one of main targets. I think theses apparently
unrelated stories betray a much bigger scheme. ECHELON can gather
information about the Korean Peninsula but cannot gather data about
the Korean residents in Japan. On the other hand, under the new
Japanese wiretapping law, government agents can easily access
communication by the latter or various supporting human rights groups,
peace movements and other similar organizations inside Japan. In order
to keep tabs on the situation in the Korean Peninsula and related
movements in Japan, and to monitor various autonomous grass-roots
movements on both sides, the Japanese government apparently wants to
integrate information-gathering systems such as ECHELON, the 1999
wiretapping law, N system, ID card and other monitoring methods.

For groups that support human rights and measures to aid the Third
World, ECHELON and the Japanese wiretapping statute are very
dangerous, because these systems of national and international
surveillance may destroy efforts to build international coalitions and
consensus.  After the Cold War, economic exploitation and human rights
violations are globalizing along with the globalization of capitalism.
There are movements towards global development and free communication
across national borders. These efforts have been seen among the
indigenous people of Chiapas in Mexico, liberation movements in
Eastern Timor, and the protests against the International Monetary
Fund (IMF) as well as the World Trade Organization (WTO). Sadly, the
intimidating presence and continued utilization of surveillance
mechanisms such as ECHELON may prevent these voices for human rights
from being heard.


>From a network activist’s point of view, I think the following
are very important.

We have to struggle against every communications surveillance and
monitoring systems (including wiretapping investigations) not only in
specific countries but on a more international scale, especially when
dealing with such alliances as ECHELON or UKUSA.

We have to maintain the right to free communication. Rating and
filtering systems are a violation of our rights. Also, we have to
protect our privacy through various methods. Strong cryptography such
as PGP is a very important tool in this regard. Therefore we have to
oppose regulations that would restrict the use of cryptography.

>From access costs to copyright regulations, we must recognize that
commercialization of the Internet is a restriction of communicative
rights. We must realize that underprivileged people from third world
countries cannot afford to pay the same prices paid by, say, members
of the middle class in first world nations. Under certain
circumstances, even one US dollar may be too high a cost. For these
reasons, we have to promote de-commercialization of the Internet.

Privacy and surveillance issues are global. Thus, even if we can stop
repression in our own country, it is not enough because other
governments or international governmental organizations may be doing
the same thing. We need international solidarity against such global
"Big Brothers".

Democratization of Internet governance systems is necessary to protect
communicative rights. All users should have the right to participate
in a process of Internet governance decision making at both local and
global levels. (*12)


*1 In Japan, courts need not determine whether a new piece of
legislation violates the constitution. According to precedents, judges
have always refused to initiate proceedings so long as nothing
concrete has happened. Therefore many pieces of legislation that are
apparently unconstitutional remain on the books.

*2 For more information about wiretapping in the U.S., see the
following websites: Electronic Privacy Information Center,
<http://www.epic.org>; and the American Civil Liberties Union,

*3 Wiretapping investigation in the United States cost about 60,000 US
dollars per investigation. For wiretapping of cellular phones in
Japan, according to media reports, NTTDoCoMo has stated that it will
cost 10,000,000,000 yen to develop the necessary technology.

*4  According to an MOJ document that was submitted to the Diet, every
phone call is traced and checked against customer telephone numbers
and mail addresses. I believe the identity of the caller is also
checked and that all of this information will be entered into various
databases, including a voice-print database.

*5 Nozomi Hamashima, N sisutemu to Sensou Taisei [N System and War
Structure] in Gijutu to Ningen, October 1999. See also the following
website about N System: was created by The Organization of Thinking
People to Prevent Administrative Authority From Abusing Their Power,
N-System <http://www.sakuragaoka.gr.jp/nsysUS/index.html> (in

*6 Takao Saitou, Praibashii Kuriaisisu [Privacy Crisis], Bunshun
 shinnsho, Bungei Shunjuu, 1999.

*7 NTT DoCoMo supplies a service named Imadokoservice using phs
phones. One can locate of the owner of phs phone using a map (sent via
fax) >from NTT DoCoMo. See

*8  See Rating and filtering about Electronic Network Consortium,

*9 Jiro Makino, Internet jou no kontentsu kisei to rinku kisei, in IT
2000 Nani ga Mondaika (Kouichirou Hayashi, et.al. eds), at 90-101.

*10 The CIA’s response is available on the following web sites:

*11 Jeffrey T. Richelson, The U.S. Intelligence Community (4th
 Westview 1999).

*12 About the Internet governance, see Association of Progressive
Communications, Internet Rights, <http://www.apc.org/english/rights/>;
Civil Society Internet Forum
<http://www.CivilSocietyInternetForum.org/>; Civil Society Democracy
Project <http://www.cpsr.org/internetdemocracy/>.

Additional References regarding the wiretapping law in Japan

Toshimaru Ogura, Japan's Big Brother The Wiretapping Bill and the
Threat to Privacy, AMPO, Japan-Asia Quarterly Review, Vol.28 No.1,
1997. See also <http://www.jca.apc.org/~toshi/cen/wiretap.intr.html>.

Early messages about the wiretapping bill in Japan (in English)

Information about wiretapping law in web (in Japanese)

Petition against wiretapping law submitted to Diet, Japan Times, Sept.
26, 2000; see also

Martyn Williams, Japan's Police Gain Right to Tap Phone, E-Mail,
Industry Standard, (August 15, 2000)

------- End of forwarded message -------