Toward the close of the Diet session this week, lawmakers affiliated with the ruling parties, riding on their coalition’s majority, rushed through several controversial bills that could infringe on basic human rights in a free and democratic society. One of them is a package of three bills designed to fight organized crime; it includes a bill that would allow prosecutors and police to wiretap telephone, fax and Internet communications.
Proponents, especially investigative authorities, note that this so-called wiretap law will help to crack down on organized crime. They emphasize that criminal investigations require new methods to protect the safety and peace of citizens’ lives. The public remains concerned, however, that investigators might use their newfound power in ways that abuse basic human rights and freedoms, such as the rights to privacy and privileged communication. It must be hoped, therefore, that authorities will make utmost efforts to prevent any abuse.
The law enables investigators to eavesdrop on “telephone and other telecommunications” as part of criminal investigations, but only those involving drugs, firearms, illegal mass immigration and organized murder. However, debates in the Lower House raised a host of potential problems with the tapping of telephone conversations.
First, investigators are allowed to overhear conversations to combat “future crime,” or track down would-be criminals. This may represent an exception to the rule that crime is punished only after it is committed.
Second, wiretaps could be used beyond the limits prescribed by court warrants. For example, conversations could be intercepted on a trial basis to determine the need for continued tapping. It is also possible that wiretaps might be used on an emergency basis, without a warrant, if conversations happened to involve a different crime.
Third, the presence of an NTT official as a witness, which is a legal requirement stipulated by law, is no guarantee against tapping innocent conversations. This is because NTT witnesses have no authority to stop such unwarranted intrusions.
Fourth, investigators are permitted to record conversations, and the records will remain in the hands of investigative authorities. And finally, the speakers involved, if they are found to be unrelated to crime, will not be notified that the conversations have been tapped. Only speakers that are suspects will be notified; they can inspect the records or file complaints.
In addition, debates in the Upper House pointed out problems involving cell phone and Internet communications. NTT officials noted during testimony that, given current communications technology, it is difficult to intercept cell phone conversations. Internet access providers also expressed reservations, citing rapid technological advances.
Technology has its pitfalls. Any investigative method, however sophisticated, would prove illegal if used in the wrong way. That makes it essential to provide safeguards against the abuse of technology. Under the new law, it is up to investigators to decide what methods to use.
Generally, the law lacks safeguards regarding cell phone and Internet communications. Take e-mail that is suspected of being involved in criminal activity. To find out whether it actually refers to crime, mail must be intercepted and downloaded. But if all content is checked, that might exceed the legal bounds of an investigation.
The basic flaw in the legislation seems to be that it lumps together different means of communication. The Justice Ministry says tapping communications is common practice in other countries. It overlooks the fact that they have different legal systems. In the United States, for example, suspects are duly protected against human-rights abuses, such as forced confessions. Instead, powerful methods of gathering evidence, such as tapping telephone conversations, are used. Here in Japan, confession is considered the “king of evidence.” The worry is that the use of such methods might create human-rights problems, given that suspects are not always properly protected against abuses.
The U.S. experience, however, should offer food for thought. The wiretap act that took effect in 1968 has expanded the scope of crime coverage and sharply increased the number of warrants. About 80 percent of the conversations that are tapped are said be unrelated to crime.
All in all, the wiretap law is fraught with problems. If law enforcement authorities use it without discretion, they will only further increase public distrust. The best way to deal with this new tool of criminal investigations is to “play it safe,” to use it sparingly and with caution.
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