Japan’s New State Secrets LawEric Johnston, The Japan Times

The Present Situation

Japanese Constitution guarantees Freedom of

Speech,

but says nothing about

``Open Government.’’

• The bureaucracy has traditionally enjoyed huge official and unofficial discretionary power in interpreting what are, by American standards, often vaguely worded laws.

• The administration of Prime Minister Shinzo Abe consists of conservative, nationalistic, and right-wing advocates of a top-down system with reduced individual freedoms.

2012-2013• Shinzo Abe, a conservative nationalist, takes

over in December 2012 after public disillusionment with, and bureaucratic and major corporate opposition to, the more moderate Democratic Party of Japan.

• He announces an ambitious agenda of ``reform’’, which includes fundamental changes in the way post-WWII Japan has been run.

• The State Secrets Law is one such ``reform’’, but the public hears little about it until . . .

SEPTEMBER 2013: Popular television actress Norika Fujiwara shocks fans, angers sponsors, when she announces on her Twitter feed she is opposed to the state secrecy bill. Suddenly, it’s big news and a public backlash begins

“As a citizen I am really concerned about it. Our nation has a right to know.”

“Once the bill is signed, the people who will write the truth on the Internet (or through other means) will be punished. When I think of all the consequences that it will lead to, it really bothers me.”

December 2013Despite massive opposition

within Japan over the autumn months, the ruling Liberal Democratic Party-

New Komeito coalition passes the bill into law.

The Four Areas The Secrets Law

Covers:Defense

Foreign AffairsCounter-IntelligenceTerrorism Prevention

DEFENSE: What Can Be Classified

(a) Operation of the Self-Defense Forces or its plans or research.

(b) Signal or imagery information(c) Assessment, plans or research

pertaining to development of defense capability

(d) Type or quantity of weapons, ammunition, aircraft or other material for defense use

(e) Structure of communications network(f) Cryptology for defense use(g) Specifications, performance or usage of

weapons, ammunition and aircraft for defense, including those in the R&D stage

(h) Type, quantity of weapons(i) Methods of production, inspection,

repair of weapons(j) Design, performance or internal use of

facilities for defense use.

FOREIGN AFFAIRS: What Can Be Classified

(a) Among policy or content of negotiations or cooperation with foreign government or international organizations, those pertaining to safety of the people, territorial integrity or other issues of national deemed important.

(b) Measures or policy including embargoes on imports or exports that Japan carries out for national security purposes

(c) Information that requires protection under treaties or other international agreements

(d) Cryptology for diplomatic use, including communication between the Ministry of Foreign Affairs and Japanese diplomatic establishments

COUNTER-INTELLIGENCE: What Can Be Classified

a) Measures, relevant plans or research to prevent ``Designated Harmful Activities’’

b) Information collected from international organizations or foreign governments and other important information collected in relation to the prevention of ``Designated Harmful Activities.’’

c) Cryptology used for the prevention of ``Designated Harmful Activities.’’

``Psst. Who defines Designated Harmful

Activities?’’

``ANTI-TERRORISM’’ MEASURES: What Can Be Classified

a)Measures, relevant plans or research to prevent terrorism

b)Information collected from international organizations or foreign governments in relation to the prevention of terrorism

c)Cryptology used for the prevention of terrorism.

. . . Means what, exactly, under

Japanese law?

Overview of the Law: Penalty for Unauthorized Disclosure of Specially Designated Secrets

1. Unauthorized disclosure of SDS shall be punished when committed by:• A. Those accessing SDS as part of their duties• Intentional: Imprisonment for not more than 10 years• By Negligence: Imprisonment for max. 2 years or a fine of 500,000 yen.• B. Those receiving and thus knowing SDS from an administrative organ for the

sake of public interest:• Intentional: Imprisonment for not more than 5 years• By negligence: Imprisonment for max. 1 year or max. fine of 300,000 yen

2. Acquisition of SDS through the following acts shall be punished by imprisonment of to 10 years:• 1) Fraud, assault or intimidation; (2) Theft; (3) Intrusion on relevant facilities; (4)

Eavesdropping on wired telecommunications; (5) Unauthorized access; (6) Any other act that undermines control of SDS holders.

3. Those who attempt, conspire to effect, instigate or incite intentional leakage of SDS.

QUESTIONS, CONCERNS, AND CRITICISMS

•  No Fully Independent Review Body of Outside Experts To Publicly Review Decisions on Classification

• Watered-down provision for a ``Public Interest Override’’. (What happens to those who disclose information related to public health issues?)

• When prosecuting under the new law, the Japanese government may NOT be required to prove, in court, that disclosure of classified information caused any harm to government interests.

• Information can be potentially classified beyond 30 years, the standard in many other countries.

Who Opposed The Law?

Those in Japan Who Opposed. . .

• The Japan Newspaper Publishers Association – the organization of all major Japanese media.

• The Japan National Bar Association• The Japan Civil Liberties Union• A group of over 200 Japanese constitutional law scholars.• The Japan Scientists’ Association• Ordinary citizens, who held hundreds of seminars,

symposiums, and protest marches throughout the country.

• Media polls showed that 80 percent of the Japanese public opposed the law.

Those Abroad Who Opposed. . . • The Foreign Correspondents’ Club of Japan—an

organization of all major international mainstream and independent foreign media.

• Reporters Without Borders• The United Nations Rapporteur for Freedom of

Speech, who said, ``The draft bill not only appears to establish very broad and very vague grounds for secrecy but also includes serious threats to whistle-blowers and even journalists reporting on secrets.’’

• International NGOs like Human Rights Watch and the Open Society Justice Initiative.

Who Wanted

The Law?

Prime Minister Shinzo Abe:

The Prime Minister has never shown he has much interest in open government or the people’s right to know.

Japan’s National Security State

The Self-Defense Forces, Japanese corporations like Mitsubishi and Toshiba involved in Japan’s defense industry, ex-Defense Ministers and hawkish, conservative ruling party politicians like Shigeru Ishiba and Yuriko Koike, as well as former Defense Minister Satoshi Morimoto and members of the ``Defense Lobby’’, which includes ardently pro-military academics and journalists.

The National Police Agency

Allows them to operate with less transparency and to strengthen their ability carry out surveillance on, for example, antinuclear activists.

The Ministry of Foreign Affairs

Flagrant spending on diplomatic parties, gifts, and bribes by Japanese diplomats can now be classified as a state secret. Of course, diplomatic negotiation blunders and incompetence will, no doubt, be classified ``in the name of national security.’’

The Ministry of Trade, Economy, and Industry

The new law allows the ministry to more easily classify trade negotiations like TPP as ``national security’’

Electric Utilities Information about the operation of nuclear power plants that was previously public may now be classified as secret.

Antinuclear groups that often uncover malfeasance, corruption, or sloppy work at nuclear power plants thanks to whistleblowers among plant workers may both now be punished more easily.

The United States The Japanese Prime Minister himself told parliament ‘’so that the U.S.-Japan military and diplomatic relationship (i.e. the U.S.-Japan alliance) could be strengthened.’’

This is Washington/Tokyo-speak for ``so that the U.S. and Japanese militaries and diplomatic corps could cooperate more in secret and less in fear that some Japanese version of Edward Snowden, Chelsea Manning, or Wikileaks would leak public secrets back to the public.’’

SPECIFIC WORRIES ABOUT

FREEDOM OF THE PRESS

(as outlined by Lawrence Repeta, Law Professor, Meiji University in ``Japan’s 2013 State Secrecy Act- The Abe Administration’s

Threat to News Reporting.’’

Designated Secrets Law Article 22 (1)

• This provision says that ``under the application of this law, there would be no expanded interpretation that would lead to improper violation of the fundamental human rights of the people, and due care shall be shown for freedom of newsgathering and the press which contribute to the people’s right to know.’’

Question: Why is this provision

here? Constitution already

guarantees freedom of the press.

Or does it?

Article 22(2)

notes that ``to the extent the newsgathering activities of persons engaged in the publishing or reporting industries exclusively seek to serve the public interest and do not violate the law or employ extremely inappropriate means, such newsgathering activities will be deemed ``legitimate’’.

Problems• What does ``extremely inappropriate means’’

mean? Answer: Up to future prosecutors and judges, not current politicians, who can make political promises now that have no basis in later law.

• The term ``publishing and reporting industries’’ is used. There is concern that freelance reporters, alternative media, civil society groups, and others not deployed by mainstream media corporations will be completely outside this legal protection.

``The secrecy law imprints a stamp of approval on `press release’ journalism, the practice whereby they publish as news the information released by bureaucrats as is, without assessment or commentary.

``This will accelerate the transformation of news organizations into public relations agencies of the government.’’

-- Professor Yasuhiko Tajima, Sophia University

Now, A Bored Student Watching This PowerPoint Presentation Might Be Thinking:

``Well, Eric is just stirring up a typical media teapot tempest. Yeah, a few journalists in Japan might find it harder to operate. But the law won’t have any effect on my Japan-related plans, let alone Japan’s relations

with the rest of the `real’ world.’’

WELL, THINK AGAIN

Four Ways in which the New Law May Impact How The Rest of the World Deals with Japan

1) Possible Effects on Academic Research:

• What happens if foreign scholars of Japanese history, government policy, or Japanese social issues discover that previously publicly available information needed for their report, thesis, or dissertation is now, suddenly, classified by anonymous bureaucrats under the pretext of ``defense’’ or ``diplomacy’’?

• Could the new law prevent the sharing of general scientific research being done by Japanese researchers on behalf of the government?

2) Possible Effects on International Trade

• Will the new law end up classifying information, by accident or design, that foreign firms need to do business in Japan?

• Will the new law designate the details of international trade negotiations like the Trans Pacific Partnership agreement as ``state secrets’’?

3) International Lawsuits Involving Japanese Firms or the Government

• What happens if a lawsuit initiated in the U.S. or another country naming a Japanese firm or the Japanese government as the plaintiffs requires the introduction, for either the accused or the defendant, of information that has been classified as secret?

4) Information About Japan That is Still Classified There, But Declassified Elsewhere

• What happens if a foreign scholar, journalist, business person or government official publishes or releases information related to Japan that has been declassified in their own country but is still classified in Japan? Could they face prosecution or ostracism in Japan?

In ConclusionThe New Secrecy Law is vague and gives the bureaucracy and a small group of conservative politicians a great deal of discretionary power to classify what they please without strong public oversight.

How the courts rule on specific sections of the law is hard to predict. But the Supreme Court has a record of being very conservative. The law’s true damage may not be in the courtroom but in the creation of an atmosphere of fear and intimidation in Japan, as journalists and others exercise much greater levels of self-censorship and democracy withers.

THANK YOU!!!

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