Japan's Communications Interception Act: unconstitutional invasion of privacy or necessary tool?

• Author: Gilmer, Lillian Roe

ABSTRACT

In August 1999, Japan became the last of the G8 nations to pass legislation to allow law enforcement to wiretap communications. For some, passage of the law was long overdue; for others, its passage marked the beginning of an impermissible government encroachment on civil rights. This Note examines Japan's Communications Interception Act, the forces in Japanese society creating the need for the law, and the reasons why the law is being challenged. Part II examines the policy behind the law, its history, and public reaction to the law. Part III presents the history of organized crime in Japan, and a commentary on its impact in Japan and on the international community. Part IV analyzes the legal challenges to the law. Part V discusses the potential efficacy of the wiretap law in combating Japanese organized crime and the likelihood of abuse in the implementation of the law.

1. INTRODUCTION

   Organized crime poses problems not only for the individual countries in which criminal groups reside and operate, but also creates significant risks for the international community. As international borders become more porous, the world is becoming a global community where events in one country no longer have only domestic consequences. As international exchange continues at a rapidly expanding pace, cooperation among foreign governments becomes increasingly important to ensure that domestic problems do not penetrate into the international community. Implicit in this phenomenon is the reality that individual countries must pass legislation, even make significant changes to existing domestic laws, to protect the global community from organized crime.

   To better cooperate with the international community in combating organized crime, many facets of the Japanese criminal procedure law are in need of revision. Criminal procedure laws in Japan are ill equipped to deal with the requirements of modern investigations and trials. (1) Outdated provisions that hinder Japanese authorities' ability to adequately fight organized crime in Japan make it difficult for Japan to play an effective role in the global fight against organized crime across borders. (2) However, increasing pressure from the international community on Japan to strengthen its laws to fight organized crime, (3) as well as concern among Japanese citizens, has caused Japan to begin debating the passage of new, more assertive criminal laws. One such step in that direction came in August 1999, when the Japanese Diet passed the Communications Interception Act, (4) a law that allows investigators to wiretap telephone conversations and other communications of suspected criminals for the first time in Japan's history.

   Wiretapping is an effective measure for combating organized crime because it enables investigators to target the pivotal figures controlling criminal organizations that have consistently remained beyond the reach of the law in Japan. (5) Investigators in most other industrialized nations have the authority to tap communications for criminal investigations. (6) Japan is the last of the G8 nations to pass such a law. (7) Even though the new wiretap law may benefit Japan's citizens by combating organized crime, it is one of the most controversial laws passed by the Japanese Diet in recent history. (8) In an attempt to delay the final vote, opposition Diet Members dragged out voting on the bill and turned the vote into a twenty-eight hour session. (9) Reaction to the Communications Interception Act has been divided, with some sectors of society claiming that the law is necessary to prevent Japan from becoming a hotbed for international crime, (10) and other groups claiming that the law is an unconstitutional invasion of privacy subject to abuse due to the nature of Japanese criminal investigations and police powers. August 18, 1999, the date of the bill's passage, has even been called "Japan's Day of Shame." (11) The law went into effect in August 2000, but there is substantial support in Japan for its repeal.

   This Note examines the Communications Interception Act, the forces in Japanese society creating the necessity for the law, and the reasons why the law is being challenged. Part II analyzes the law itself, including the history and policy behind the passage of the law, as well as public reaction to it. Part III explores the history and growth of organized crime in Japan, and its impact upon both the Japanese and international communities. Part IV analyzes the legal challenges to the law, including constitutional issues, and characteristics of the Japanese law enforcement system that create the potential for abuse in the law's application. Finally, Part V discusses the potential efficacy of the wiretap law in combating Japanese organized crime, and the likelihood of abuse in the implementation of the law.

2. THE COMMUNICATIONS INTERCEPTION ACT

   This section addresses the Communications Interception Act itself. Reasons for the passage of the law are discussed, and the law itself is compared with that of other G8 countries. This section concludes with an examination of public reaction to the law.

   1. The Communications Interception Act and Other Anti-Organized Crime Laws

      During the last decade, the United Nations has devoted significant attention to the growth of transnational organized crime; (12) such crime has increased due to factors such as the end of the Cold War and the process of globalization of trade and information. (13) In 1999, the United Nations set up a special panel to work out a global anti-crime treaty, in an effort to combat the globalization of crime. (14) By taking part in the treaty, signatories agree to take legislative measures designed to strengthen government power to fight organized crime to ensure compliance with the treaty. (15) The treaty calls for international cooperation in criminal investigations and trials, but Japan's criminal procedure laws contain provisions that make it difficult to meet the requirements of modern investigations and trials. (16) The treaty's proposal encouraged the Japanese legislature to begin thinking about updating some of its own criminal laws. (17) In a step toward enacting effective laws to fight organized crime, the Japanese legislature passed a series of laws against organized crime in 1999, the most notable of which was the Communications Interception Act. (18)

      Until the passage of the Communications Interception Act in 1999, Japan remained the only Member Country of the G8 without a law permitting law enforcement authorities to monitor telephone and computer communications. (19) Government wiretapping of suspicious communications is not only an effective way to stop criminal acts before they occur, but it is also an effective tool to fight organized crime, because it enables the authorities to obtain valuable evidence against leaders of organized criminal groups who are typically insulated and difficult to catch. (20)

      In addition to the pressure on Japan from the United Nations, Japan's government faced increasing pressure from foreign governments to strengthen laws designed to fight organized crime. (21) In recent years, the incidence of drug and arms smuggling involving Japanese crime syndicates has been on the rise, which has led to increased pressure on the Japanese government both internally and externally to strengthen investigative powers. (22) Members of the Japanese government, as well as foreign governments, have become concerned that Japan lacks effective laws to deal with organized crime. (23)

      The Communications Interception Act was one of three bills passed by the Japanese Diet in 1999 designed to tighten measures against organized crime. (24) The bill's passage, however, was not easy; opposition parties used every possible tactic to block or delay passage of the bill. (25) Concerned that authorities could easily abuse their expanded powers, opposition parties boycotted meetings of the Judicial Affairs subcommittees of both houses, threatened to walk out of the general assembly, and submitted a series of no confidence motions against Prime Minister Keizo Obuchi and cabinet ministers involved in drafting the bill. (26) When it became apparent that they could not stop the wiretap bill's passage, opposition parties attempted to delay the vote as long as possible and turned the final vote into a twenty-eight hour session. (27) The bill passed in August 1999, but its enactment was delayed until August 2000 due to the need to develop necessary systems and equipment, and to finalize specific procedures and rules. (28)

      The final version of the Communications Interception Act is a compromise from its original form. Japanese police, feeling constrained in their ability to assist in global crime-fighting efforts and investigations while organized crime has grown in sophistication and widened in scope in recent years, (29) believed that wiretapping communications would be the only effective way to identify the chains of command in criminal syndicates. (30) Accordingly, the initial wiretap bill would have given authorities the power to tap communications in more than one hundred types of crimes generally committed by organized criminal groups. (31) The strong opposition to the bill combined with a feeling of an urgent need to address organized crime issues caused the drafters to revise the bill so that only four specific crimes could provide the basis for legitimate wiretapping. (32) The final version of the bill also restricts the ability of investigators to use the law by placing strict conditions on its usage.

      The four types of crime in which wiretapping is allowed under the Communications Interception Act are drug trafficking, illicit firearms trade, organized murder, and the smuggling of illegal immigrants into Japan. (33) Media that can be tapped include telephone calls, facsimiles, and e-mail communications. (34) Communications can only be wiretapped for a period of ten days...