FITUG e.V. Förderverein Informationstechnik und Gesellschaft

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

Sincerely, Christopher Chiu Global Internet Liberty Campaign Organizer American Civil Liberties Union 125 Broad Street New York NY 10004-2400 USA 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) ogr@nsknet.or.jp 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 mailbox".

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 crimes.

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

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. (*10)

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.

------------------ Conclusion ------------------

>From a network activist’s point of view, I think the following
>principles

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

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)

======= NOTES

*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, <http://www.aclu.org>.

*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 English).

*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 <http://www.nttdocomo.co.jp/p_s/services.html>.

*8 See Rating and filtering about Electronic Network Consortium, <http://www.nmda.or.jp/enc/rating2nd-en.html>.

*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: <http://www.jca.apc.org/~toshi/cen/cia_19990521_1.jpg>; <http://www.jca.apc.org/~toshi/cen/cia_19990521_2.jpg>; <http://www.jca.apc.org/~toshi/cen/cia_19990521_3.jpg>.

*11 Jeffrey T. Richelson, The U.S. Intelligence Community (4th edition, 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) <http://www.jca.apc.org/~toshi/cen/index.Eng.html>.

Information about wiretapping law in web (in Japanese) <http://www.jca.apc.org/privacy/>. <http://www,jca.apc.org/~toshi/cen>.

Petition against wiretapping law submitted to Diet, Japan Times, Sept. 26, 2000; see also <http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?nn20000926b8.htm>.

Martyn Williams, Japan's Police Gain Right to Tap Phone, E-Mail, Industry Standard, (August 15, 2000) <http://www.thestandard.com/article/display/1,1151,17697,00.html>.

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