<nettime> Japan's Big Brother, the Wiretapping Bill and the Threat toPrivacy

[Toshimaru Ogura <ogr@nsknet.or.jp>]

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Following article was written in last autumn and appeared in AMPO,
Japan-Asia Quarterly Review, Vol.28 No.1, 1997. Please see the end of this
article for more information about AMPO.
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Japan's Big Brother The Wiretapping Bill and the Threat to Privacy

By Toshimaru Ogura

In July 1997, a legislative consultation group serving the Ministry of
Justice issued a report on the legalization of wiretapping. Based on this
report, the Ministry of Justice plans to submit a bill called The Law
Against Organized Crime, commonly known as Tochoho, or the wiretapping law,
during the extraordinary session of the Diet this fall.

In the United States and many European countries, wiretapping is already
legal, and civil rights violations by law enforcement authorities, stemming
from police electronic surveillance, has emerged as a major issue. Here in
Japan, there is no crime problem that would seem to justify wiretapping.
Nevertheless, the legalization of wiretapping is being proposed by the
Ministry of Justice.

We have to consider this move by the Japanese government in light of the new
international order. Instead of the Communist bogeyman, international mafia
groups and groups Iabeled by the government as "terrorist" are cited as the
new public enemies. Yet, behind this rhetoric lies the nagging insecurity of
global capital. For the social antagonisms it produces continue to endanger
its rule of the planet. Autonomous people's movements, the grass that shoots
up through the cracks in capital's paved-over order. Still contest the
domination of capital and its attend forms of immiserization, destruction
and discrimination. In this era, too, new communication tools, especially
the Internet, are enabling various people's movements to exchange
information and circulate struggles more quickly and efficiently. In this
context, increased electronic surveillance reveals the state tendency to try
to suppress autonomous people's movements by utilizing its police apparatus.


Outline of Wiretap Bill

At the time this article was written, the Ministry of Justice had not yet to
introduce the wiretapping bill to the Diet. However, the Ministry of Justice
report sheds some light on the probable content of the bill.[1] Tochoho
would allow wiretapping of telephones, cellular phones, facsimile machines
and computers. Law enforcement authorities would need a court warrant to
carry out wiretaps, as they do in order to conduct house searches.

If the Japanese courts approach toward granting search warrants is any
indication, however, this check may be largely ineffective in curbing police
abuses. Courts almost never refuse requests for search warrants, and
sometimes turn a blind eye to police investigators enforcement on suspects
rights. In 1987 and 1988, for example, using the terrorist activities of the
Japanese Red Army as a pretext, 260 houses across Japan were searched;
somewhere searched several times.  Police used an address file found in one
search to extend the scope of their searches and seizures. Although it had
been ascertained that those under investigation were not members of the
Japanese Red Army, or otherwise involved in criminal activity, the court did
not refrain from issuing search warrants.

During the investigation into the Tokyo subway gas attack by members of Aum
Shinrikyo, 500,000 pieces of data on users of the Japanese Diet Library were
seized because of suspicion that Aum followers might have used the library
to gain information about the making of sarin gas.

Law enforcement authorities need not list the name of a suspect in a search
warrant request; the same would hold true for Tochoho. Moreover, with
Tochoho, suspicion of future crimes could be considered adequate grounds for
a warrant application. Yet another problem with Tochoho is that
investigators could use information gathered by wiretapping to proceed with
new wiretaps; no additional court warrants would be necessary to expand
their web of surveillance.

The wiretapping law would prohibit the recording of conversation unrelated
to suspected criminal activity. However, since no third parties would be
present to observe investigators, there would be no way to confirm that
authorities were abiding by the law. And, of course. Even if investigators
were not recording a conversation, they could easily take notes. Tochoho,
then, will create new opportunities for police to secretly monitor
individuals and organizations.

According to the report on wiretapping legislation, telephone companies,
Internet providers, employer and schools will all be expected to cooperate
with law enforcement authorities. Thus, many people may soon find themselves
in the position of having to help spy on their own colleagues, customers or
students. NGOs and Internet providers, meanwhile, may come under pressure
from authorities to aid in the electronic surveillance of people's
movements.

Rolling Back Rights

In the Japanese Constitution, the secrecy of telecommunication is guaranteed
by Article 21: "Freedom of assembly and association as well as speech, press
and all other forms of expression are guaranteed. No censorship shall be
maintained, nor shall the secrecy of any means of communication be
violated." Furthermore, the Telecommunication Law, which is predicated on
Article 21, states, "The secrecy of telecommunication handled by
telecommunication companies shall not be violated."

Since the secrecy of telecommunication has been established as an individual
right in both the Constitution and the Telecommunication Law. Police can not
legally tap telephones. Tochoho would thus represent, in effect, a rollback
of citizens rights.

This broadening of police powers is particularly disturbing when certain
existing police practices are taken into account. In Japan, as has been
documented by human rights groups such as Amnesty International and
Nichibenren (Federation of Japan Bar Association) and prisoner support
groups, the rights of criminal suspects are frequently ignored. In
comparison with the United States and European countries, police
interrogation in Japan is severe and sometimes is accompanied by mental and
even physical torture, Police questioning often lasts for more than three
weeks at a time, and suspects are kept under constant watch by police. Due
to this environment, a high percentage of suspects confess. As police forces
do not have the right to be present at interrogations, it is not unusual for
suspects to confess to false charges. Given this pattern of rights abuses,
we must view with grave concern any further strengthening of the powers of
police investigators.

History of Wiretapping by Police

The most famous case involving police wiretapping was that of Ogata Yasuo,
whose phones were bugged for more than a year while he served as an official
in the Japanese Communist Party. The electronic surveillance was carried out
mainly by a covert group of security police that specialized in illegal
activities such as the gathering of information on leftist groups. Renting a
room near Ogata's house, the police tapped directly into a telephone circuit
connected to Ogata's residence. Ogata filed a suit against the police, and
won his case in both district court and the high court in Tokyo. It was
revealed in the trial that police never received a warrant for the wiretap;
moreover, it became clear that Nippon Telephone and Telegraph Company (NTT)
offered illegal assistance to the police, helping them select the correct
phone circuit. Police involved in the case never admitted having tapped
Ogata's phone Iine, and an officer charged with wrongdoing in connection
with the surveillance operation repeatedly refused to testify in court, even
under threat of punishment.

Ogata's case is the only one of its kind. However, more than 20 instances of
wiretapping against the Communist Party have been documented. Since the
Tochoho began to take shape in .spring 1997, citizens from around the
country have come together to hear and exchange stories of past experiences
with police wiretapping. Yoshikawa Yuichi of now-defunct Beheiren (The
Japanese "Peace for Vietnam!" Committee) testified about having his phone
tapped during the Vietnam War. Police used information acquired from the
wiretap to track down fugitive U.S, soldiers whom Beheiren had assisted in
deserting. Other people have testified in recent citizens meetings about
hearing unusual noise on their phone lines and about having seen people take
phone lines down from poles and link them directly to police vehicles.

Why is the Ministry of Justice now trying to legalize wiretapping? One
factor to consider is the current demand for cros-border cooperation on
criminal investigations. Also, new technologies, including computers,
cellular phones, and digital phone lines, have created the need for
large-scale technical cooperation from telecommunication companies if police
are to conduct effective electronic surveillance. Finally, in the case of
illegal wiretapping, there is a limit to the number of personnel that can be
assigned to an investigation as well as budgetary constraints.  For these
reasons, Iegalizing wiretaps is a way to cut costs and to rationalize
electronic surveillance in Japan.

The Reality of Wiretapping in the United States

According to a report by the American Civil Liberties Union (ACLU), there
were more than 1,000 legal wiretaps in the United States in 1994.[2] Between
1984 and 1994, the number of wiretap warrants issued by U.S. federal and
district courts doubled. And in addition to the electronic surveillance of U
S citizens, at least 600 cases of wiretapping against foreign countries and
associations abroad have been carried out under the authority granted by the
Foreign Intelligence Surveillance Act (FISA) of 1978. It is widely believed
that there are also a large number of illegal wiretaps conducted by U.S.
authorities.

Under U.S law, the maximum period for one wiretap is 30 days, but it is
renewable. In1994, the average bugging period was 40 days. (By contrast, the
average period in 1970 was 20 days.) During an average 40-day period, 2139
calls and 84 people are monitored. By simple calculation, then, more than
2.1 million calls and 84,000 people were electronically monitored in the
United States in 1994. According to a 1995 report prepared by the United
States Federal Bureau of Investigation (FBI), wiretapping will increase 54
percent by 1998, and 130 percent by the year 2004.

The bigger problem, however, is that wiretaps related to actual criminal
activity make up only 17 percent of total wiretapping. This number, which
was 25 percent in 1984, is decreasing every year. We can calculate that in
1994, more than 1.9 million calls unrelated to crimes were tapped.

New Technologies, New Enclosures?

With the spread of computer use, wiretapping now poses a greater threat to
our privacy than ever before. Computers enable rapid dissemination of
enormous amounts of information. All of this information, including past
data stored in computers could become available to authorities if wiretaps
are made legal. Moreover, since it is possible to communicate with many
people at a time using computers, the number of people subject to electronic
surveillance could increase exponentially.

The wiretapping bill that will be introduced will impose on investigators
the duty to immediately decode the contents of encrypted communication. This
means that the use of encryptions that cannot be readily decoded may be
prohibited. Hence, encryption software like PGP, which is the most popular
one distributed through the Internet, may be outlawed. It also appears that
encryption programs and communication device  will be standardized to allow
investigators to utilize the kind of master key that can decipher any
telegraphic codes.

All of this bodes ill for people's movements. The Internet plays an
important role in assisting and circulating struggles against oppressive
regimes. The violation of the secrecy of communication among people opposing
those regimes could become much more than an infringement on an abstract
individual right; it could, quite simply, endanger people's lives. We must
bear in mind this possibility, for information gathered by Japanese
authorities under a new wiretapping law could be leaked or intentionally
passed along to authorities serving oppresive governments.

The Struggle Against Tochoho

As the new communication technologies become more widely used, electronic
surveillance looms as a serious problem. Nowadays, electronic surveillance
goes beyond simple wiretapping and is shifting toward a comprehensive
monitoring system, including monitoring by video and multimedia
technologies.

In Japan, the dominant opinion is that even though wiretapping violates
citizen privacy rights, it may be a necessary part of certain criminal
investigations. Sensational mass media reporting about the drug trade and
heinous crimes has spawned campaigns from time to time demanding more severe
law enforcement. With this kind of backdrop public sentiment as a backdrop,
the powers of the police have gradually increased.

Still, many people in Japan are alarmed by the trend toward greater police
surveillance, and since the beginning of 1997, different struggles have
emerged to fight the legalization of wiretapping. One anti-wiretapping
campaign has created its own homepage on the Internet. [3] Recently, a
resolution against Tochoho was passed by a coalition of groups including
Nichibenren, Simbumroren (the Japan Federation of Workers' Newspaper Unions)
and Nishoren (the Japan Federation of Consumers), as well as religious
groups working on human rights issues and groups opposing the Emperor
system. Activists have also produced a documentary video on the reality of
wiretapping in Japan.[4] JCA, a users' group on the Internet, carried the
resolutions against the Tochoho. These struggles are gradually spreading. If
Tochoho is not introduced in the Diet by the end of this year, it may come
up for a vote during the next Diet session. Therefore, our struggle has just
begun.

Notes

1.The report by the legislative consultation group calls for new legislation
other than the legalization of wiretapping. The report suggests a law for
"group crimes" which would impose more severe punishments and allow for the
seizure of properties gained through criminal activity. This law enforcement
would not be limited to criminal groups in a narrow sense such as gangsters.
There is a significant danger that it might be arbitrarily applied to
people's movement organizations, NGOs, labor unions or human rights
organizations. Since the discussion in this article is limited to the issue
of wiretapping, there is no mention of these other issues.
2. ACLU. "Wiretapping Bills on Immigration and Terrorism Move to House Votes
on March 12-19," on homepage: http://www.aclu.org/congress/wiretap.html
     Also, on wiretapping in the United States, related resources can be
found by going to the homepage of the Electronic Privacy Information
Center(EPIC: http://www.epic.org/privacy/wiretap/
3. http://www.jca.ax.apc.org/~toshi/cen/wiretap.intr.html
4. Video, "Tochoho: The Day When Police Rob Privacy" by the Video Production
Committee "Wiretap." Contact: 81-3-3330-8270 (phone & fax).Price is
5,000yen.

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AMPO is publisned by Pacific Asia Resource Center (PARC), one of most
important non-profit activist resource center in Japan. This issue of AMPO
is special issue on The Twilight Of The Soehart Regime: Toward
Democratization?.
Contact:
e-mail PARC@jca.ax.apc.org
web page: http://www,.jca.ax.apc.org/PARC
phone: 81-3-3291-5901
fax: 81-3-3292-2437
address: Rm.303, Seiko Bldg. 1-30 Kanda-Jimbocho, Chiyoda-ku, Tokyo 101
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(((((((((NO! WIRETAP BILL)))))))))
Toshimaru Ogura
ogr@nsknet.or.jp
toshi@jca.ax.apc.org
another world Home Page
http://www.jca.ax.apc.org/~toshi/
(((((((((NO! WEB RATING)))))))))


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