Resolution Calling for Enhancing Guarantee of the Right to Privacy and the Right to Know, and the Promotion of Information Disclosure to Realize a Democratic Society that Secures Respect for the Individual
In June 2013, Edward Snowden, a former National Security Agency (NSA) staff, revealed the fact that the US Federal Government had created a system for monitoring all information on the Internet with the technical support of a private Internet company and had secretly used such system, and it shocked the world. It shed light on two issues: (i) the right to privacy which has been at risk in the present super surveillance society where the state can trace individual acts, even in the past, across borders by secretly using advanced digital technologies; and (ii) the fact that public information concealed by a state can easily be disclosed by a civilian through whistleblowing.
In Japan, the technology to integrate a large amount of information has rapidly advanced along with the internet, monitoring cameras, GPS, etc., while the national identification number system has also been created. Further, with the enactment of the Act for Partial Revision of the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters (hereinafter, the Revised Anti-Social Forces Act), many types of so-called “criminal conspiracies” have newly been formulated, arousing concern over the possible reinforcement of civil surveillance.
Regarding the disclosure of public information, with the enactment of the Act on the Protection of Specially Designated Secrets (hereinafter, the “Protection of Secrets Act”), the concern over the arbitrary concealing of information by the government has increased. In the meantime, the government’s inappropriate management of information disregarding the freedom of information and the people’s right to know was revealed as demonstrated by the alleged non-presence of a daily journal of PKO troops or documents regarding the permission of founding a veterinary medicine college, or the reported disposal of the documents regarding the sale of national land in a short period of time by a judgment of an governmental organization.
Japan may be in danger of becoming a country which gives the state free rein to collect and use private information that should be protected, while concealing public information that ought to be disclosed. To put the brakes on this and realize a democratic society with respect for individuals, it is vital to strengthen guarantee of the people’s right to privacy and the right to know, and to reconfirm the importance of promoting information disclosure.
People may find it difficult to autonomously make a decision based on one’s values or beliefs, to freely act and collect information and to freely express themselves when they find themselves being watched. In short, the right to privacy and the right to know is essential for freedom of expression to be fully exercised while helping to achieve self-determination in the private sector that is essential to respect for the individual. This is a vital human right that contributes to the maintenance and development of democracy based on the principles of constitutionalism.
Therefore, in today’s world, which can be referred to as a super surveillance society with a huge amount of accumulated information, the monitoring of personal information by a public authority should be limited as much as possible, and a legal system should be developed to regulate legal power and the exercise of such power by the public authorities when collecting, searching and using personal information.
Moreover, to achieve a democratic society where individuals are respected, the process of democracy should function in a proper and sound manner. In order for people to autonomously elect their representatives under the system of representative democracy and participate in policy making, it is essential for public information to be fully disclosed for people. To this end, it is necessary to firmly secure the right to know and to improve the systems that promote disclosure of information.
Furthermore, exercise of the right to know is largely helped by independent news reporting by the media, as well as by maintaining a close eye on authority through whistleblowing. It is also important to have a mechanism in place that is not withering the media or whistleblowers.
In light of the importance of the right to know and freedom of information, information about the process of decision making on important policies by governmental agencies has to be recorded and stored without failure. Meanwhile, the arbitrary designation of secret information and information disposal by the public authorities should not be allowed. Rather, wider disclosure should be encouraged and the mechanism for keeping an eye on public authority should be reinforced.
Taking the above into consideration, the JFBA proposes the following specific measures:
1. Improvement of the guarantee of the right to privacy in the super surveillance society:
(1) To prohibit public authorities from exhaustively collecting and searching all personal data on the Internet by themselves or through private companies;
(2) To make a new law to legally regulate the acquisition of images from CCTV cameras or GPS data and the use thereof for investigation purposes;
(3) Not to legislate any law that allows for the further expansion of the scope of crimes which may utilize wire-tapping by investigative agencies and permit the monitoring of conversations. To institutionalize a supervisory system by an independent third body to ensure appropriate wire-tapping;
(4) To delete the so-called “criminal conspiracy” provisions which have been newly formulated under the Revised Anti-Social Forces Act, as it allows for the escalation of the monitoring of civilians with a strong probability of seriously constraining civil freedom;
(5) To set strict limits on the monitoring public authority and its exercise that are authorized for information agencies such as the security police and the Self Defense Force Intelligence Security Command, and to institutionalize the supervisory system by an independent third party body; and
(6) To identify institutional and operational problems with the national identification number system in order to prevent its use for civil monitoring, as it may enable the state to uniformly control all personal information. To take appropriate measures such as future abolishment thereof, limiting the applicable scope of use substantially, and prohibiting private use.
2. Promotion of information disclosure and reinforcement of mechanism to monitor the public authority to improve and strength the guarantee of the right to know:
(1) To enact a basic law on freedom of information (tentative name) that prescribes fundamental principles and basic points on the disclosure, storing and acquisition of public information;
(2) To revise the Act on Access to Information Held by Administrative Organs, etc. and to establish an information disclosure system that prevents administrative organs from arbitrarily concealing such information which should be made accessible to citizens;
(3) Considering that electronic data is considered to constitute “administrative documents” under the Public Records and Archives Management Act, to store all electronic data for an extended period of time, and to create an independent third party body that monitors any attempt to arbitrarily discard administrative documents;
(4) To conduct a radical review of the Protection of Secrets Act, including its potential repeal;
(5) To strengthen the protective mechanism for whistleblowers, and disseminate the Whistleblower Protection Act; and
(6) To build a mechanism that encourages independent and diverse news reporting so that the media’s monitoring of the public authorities can be further strengthened.
The JFBA is determined to exert its best efforts to realize the above recommendations.
October 6, 2017
The Japan Federation of Bar Associations