List of Issues:

1. Wiretapping for Criminal Investigations
   
   

   A bill for a law concerning the interception of communications for criminal investigations has been submitted to the Diet. Does this not go against Article 17 of the Covenant that provides for the protection of communications against arbitrary or unlawful interference or attack?
   
   

2. Wiretapping by Private Entities
   
   

   Is there a law to regulate wiretapping by private entities? If yes, please provide the content. If no, is there a plan to enact such a law?

Background:

1. Article 3 of the bill, concerning the interception of communications for criminal investigations, allows for the interception of communications under a court warrant if there are reasonable grounds to suspect that a crime has been (or will be) committed. The bill stipulates three cases in which interception is permitted: when there are reasonable grounds to suspect that, 1) a crime, as specified in the law, has been committed by two people or more, 2) a crime, as specified in the law, has been committed and will be continued by two people or more, and 3) a crime for which the penalty would be imprisonment without forced labor or heavier penalties has been committed and will be continued by two people or more in preparation for another crime as specified in the law (Article 3, Paragraph 1). The crimes specified in the law include actions that are crimes under twenty laws, such as the crime of murder under the Penal Code, or crimes that are included in the Explosives Control Act.
   
   Interception of communications is, in substance, wiretapping as it can be conducted without the consent of the parties concerned.
   
   The interception of communications can be conducted once a prosecutor or a judicial police official requests and obtains a warrant from a judge of the Domestic/Summary Court. However, the warrant will not be presented to the parties concerned before the interception begins. Therefore, the bill establishes a critical exception to the principles of criminal procedure concerning warrants, which are to be shown to the parties concerned prior to investigation, seizure, arrest, etc.
   
   Attendance by those who administer the place of interception or by their substitutes is allowed, and the warrant must be shown to them (Articles 9 and 12). However, the system is quite insufficient as these official watchmen do not have rights to stop interception even when they recognize that the ongoing communication is irrelevant to the conditions required for interception.
   
   Criminal investigations are to be conducted once a crime has been committed. However, the interception of communications may target crimes that may be committed in the future (Article 3, Paragraph 1). Furthermore, this Paragraph allows for a very broad subject area of interception by including the commission and continuation of minor crimes that are penalized by imprisonment without forced labor, when it is suspected that the minor crime is being committed in preparation for a crime listed in the law.
   
   The bill's fundamental and greatest problem is that, in allowing the invasion of secret communications by interception, the bill contravenes Article 17 of the Covenant.
   
   Enactment of the Individual Information Protection Law is a prerequisite for the Communications Interception Law. If it is indeed necessary, the latter law should be considered only after restrictions and regulations on the collection and use of private information are legally safeguarded.
   
   The JCLU has criticized the Act for Protection of Computer Processed Personal Data held by Administrative Organs in that it only protects information processed by computers, but not hand processed information. The JCLU has furthermore pointed out that even computer-processed information is not sufficiently protected due to the following reasons:
   
   

   It is not prohibited to collect an unlimited amount of information on a person's thoughts, beliefs, and faith, or social status that can be a cause of social discrimination. It is difficult for citizens to know what private information the government possesses. In answer to the right to request the release of personal information held by the government, there are a wide range of reasons which enable the government to decide not to release such information. The right to request the correction, addition, or deletion of personal information held by the government is not recognized by law.

   
   In particular, reform of the above problems has not been realized, despite the fact that the Committee on the Cabinet of the House of Representatives, in November and December 1998, decided that they should be reconsidered within five years. It is negligence on the part of legislative and administrative organs. Unless fundamental procedures to protect personal information are duly legislated the government should refrain from legislating measures which are adverse to the protection of such information.
   
   
2. Because of the lack of a personal information protection law, wire tapping by private entities is left unchecked. The actual incidence of wire tapping is not known except when it is caught and reported as a criminal case.
   
   Therefore, there is an immediate need to enact a personal information protection law that also restricts wire tapping by private entities.