The wiretap law against organized crime that took effect on Aug. 15 could prove a double-edged sword. It allows law-enforcement officials to eavesdrop on phone conversations (including cell-phone conversations), fax messages and e-mail. Unless properly enforced, however, the law could violate basic rights, such as privacy and freedom of the press, that are guaranteed by the Constitution.
The use of wiretaps in modern-day investigations is unavoidable because of the increasing sophistication and globalization of organized crime. But investigators must take every possible precaution to ensure strict compliance with the law. Implementing directives issued by the Justice Ministry and the National Public Safety Commission may not be sufficient.
The legislation covers four types of crime — drug trafficking, gun running, mass smuggling of people, and murders by crime syndicates. Prosecutors, police officers (superintendents and other senior officers), narcotics controllers and officials of the Maritime Safety Agency are authorized to use wiretaps. In principle, communications can be tapped under court warrants for up to 10 days.
Following the law’s enactment in August 1999, the Justice Ministry, the National Police Agency and other authorities concerned took specific steps to prevent abuse. First, in the case of investigations by prosecutors, each request for a court warrant must be approved by a chief prosecutor who heads a regional prosecutors office. The purpose of this rule is to prevent unilateral action by investigating prosecutors.
Second, requests for legal orders in other cases must be approved by heads of the prefectural police. Chief investigators must also be appointed by these top police officials. Third is the use of the tapping method known as “spot monitoring.” This method involves recording communications on and off, rather than continuously. The recording device stops automatically after a given period, thus precluding indefinite and uninterrupted listening.
These precautions should help dispel public concern about potential privacy violations and other excesses. But will they work effectively? That depends primarily on prosecutors and police. But rampant police scandals have eroded public trust in law-enforcement authorities.
The wiretap law also allows the tapping of media communications under certain conditions. The Justice Ministry says tapping may be continued until it is confirmed that the communications in question are strictly for reporting purposes, and that the recording will be discontinued after formal measures are taken, such as identifying the reporters involved.
Still, there are concerns that investigations might interfere with press freedom, because reporters’ conversations and messages, even if no crime is involved, can be tapped unless and until it is established that they are part of normal reporting activities. The possibility is left open that media communications might be used as evidence in investigations or trials if they contain information related to crimes.
The handling of records of tapped communications is also a cause for concern. Records to be used as evidence in court are prepared from original tapes by deleting information not related to crimes. But memos and similar materials can be disposed of, provided they meet specified conditions. E-mail will also be tapped entirely, but extracting only the relevant sections, as with tape recordings, will probably be difficult.
In the United States, excesses in wiretapping have created new cases of rights violations, touching off moves toward the implementing of legal restrictions. A U.S. human-rights group reports that wiretaps were used 12 million times between 1985 and 1995, but most of those cases had nothing to do with crime. In 1995 alone, unrelated conversations were recorded nearly 2 million times.
The question for Japan is: What can and should be done to avoid a similar situation? The law requires authorities to report the numbers of times wiretaps have been used and other relevant facts to the Diet. That may not be enough. Judges can refuse cooperation if they disagree with tapping. But the U.S. example is disturbing: In the past eight years only one warrant request has been rejected.
One solution would be to establish a new disclosure law designed to secure greater transparency in wiretap-aided investigations. A new independent oversight agency empowered to take complaints from citizens and to order investigative authorities to take corrective action could also help minimize abuse. Yet only strict discipline can ensure safe use of this double-edged device.
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