Forwarded from elsewhere... ----------------- 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. ----------------- 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. ------------------- 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 PARCat_private 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 ------------------- (((((((((NO! WIRETAP BILL))))))))) Toshimaru Ogura ograt_private toshiat_private another world Home Page http://www.jca.ax.apc.org/~toshi/ (((((((((NO! WEB RATING)))))))))
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