[Infowarrior] - Peace and Privacy in the Pacific

[Richard Forno]

Peace and Privacy in the Pacific

By Jennifer Granick
02:00 AM Aug, 02, 2006

http://www.wired.com/news/columns/1,71511-0.html

In 2004, three men distributing leaflets opposing the Iraq war near a
Japanese military base were arrested, interrogated, held for 75 days and
then convicted and fined for trespassing.

Many people believe that the prosecution of these men, who came to be known
as the Tachikawa Three, was heavy-handed and discriminatory. The Tachikawa
Three have become a rallying point for two movements: Japanese pacifists
opposing constitutional changes that would free the nation to join military
actions, and a nascent pro-privacy movement that's gaining surprising ground
in a country with no native word for "privacy."

Last week, I met Toshimaru Ogura, professor of political economy and
information economics at Toyama University, in a cafe in Tokyo's Shinjuku
Station. Much of Japan's social and professional interaction takes place in
cafes, bars, parks and restaurants rather than in homes or offices. Still,
the Japanese view these as public areas, subject to government surveillance,
rather than private meeting places.

The Japanese aren't especially familiar with the concept of privacy, Ogura
says, and the country has no longstanding activist organizations dedicated
to protecting privacy rights. As a result, grass-roots organizing around
privacy has been particularly difficult in Japan.

But the recent groundswell of opposition to Japan's proposed "Conspiracy
Law" bill -- opposition fueled by the Tachikawa Three case -- may herald a
sea change.

In 2000, Japan signed the United Nations Convention Against Transnational
Organized Crime and its Protocols. (The United States is also a signatory.)
The convention requires member nations to make it a crime to participate in
groups with an illegal purpose. The proposed Conspiracy Law is Japan's
effort to implement the terms of the convention.

This impacts privacy because once this participation, or "conspiracy," is
illegal, law enforcement can use one of the most invasive tools in its
arsenal -- wiretapping -- to investigate the offense.

Criminalizing conspiracy has obvious appeal. In principle, stopping crimes
before they occur always makes sense. And it makes a lot more sense in the
post-9/11 world, where grand terrorist acts, unlike street crimes, aren't
just something to be avoided, but are intolerable.

On the other hand, who decides what groups are illegal to join?
Organizations with unpopular goals must be distinguished from groups with
illegal ones. And there's a risk that innocent people will get caught in law
enforcement dragnets if illegal activities by one member are imputed to
every member.

Invasive tools like wiretapping may not be appropriate to combat trivial
crimes like the Tachikawa Three's trespassing for the purposes of
distributing leaflets, and perhaps should only be used to investigate
conspiracies to commit more serious offenses.

United States law attempts to address some of these problems by forcing
prosecutors to prove that the defendants didn't just talk about committing
crimes, but did something in furtherance of their illegal agreement. Other
countries require proof that the defendant was actually informed that the
organization to which he belonged was criminal, or that the defendant had an
illegal intent to commit a crime.

In Japan, citizens in coalition with activists, journalists and lawyers
strongly objected to the first proposed version of the Conspiracy Law, which
didn't have any such safeguards. So far, the coalition has been able to
delay passage of the bill and force amendments that give slightly less
discretion to police and prosecutors.

Many Japanese citizens understand that the surface allure of the Conspiracy
Law might be undermined by the reality of its enforcement. Ogura says that
the Tachikawa Three case demonstrated that police already were enforcing
existing laws discriminatorily against pacifists. In a similar case, a
Buddhist priest opposing U.S. military presence in Japan was arrested last
year for trespass while leafleting near an American base in Okinawa.

Under the Conspiracy Law, the Tachikawa Three and the priest could be
wiretapped and arrested before the pamphlets even go out. The public here
sees this as an even more frightening threat, not only to the popular
ideology of pacifism, but also to freedom of association more generally.

By fighting the Conspiracy Law, Japanese activists aren't rejecting the idea
that police should be able to stop some crimes before they happen. Rather,
they are insisting that Japan's parliament define the crime in a way that
doesn't result in surveillance and arrests of journalists, workers for
nongovernmental organizations, union members or peace activists.

Few expect this coalition to succeed in stopping the Conspiracy Law
altogether. It enjoys strong support among the ruling party in the Diet. But
if the group has a lasting impact on Japanese citizens' view of privacy and
surveillance, it will be a great success nonetheless.

According to Ogura, pro-privacy coalitions usually form around specific
policy issues and then dissolve when the matter is decided. For example,
when the police set up closed-circuit television cameras to monitor the
streets of Kabuki-cho near Shinjuku Station, activists held a public meeting
to discuss the issue, and the Asahi Shinbun newspaper critiqued the plan.
When the cameras went up anyway, the pro-privacy coalition disbanded.

Similarly, in 2002 an ad hoc coalition protested the implementation of Juki
Net, a resident-registration program that collects identifying information
and tracks residents for more efficient electronic government. The Juki Net
system is now in place, and the outcry is mostly done with -- though
advocates continue to push for improvements to the system.

The coalition in opposition to the Conspiracy Law may be a bit different.
The coalition is an extension of a past organization formed in opposition to
a widening of Japan's wiretap act earlier this decade. It is also in tune
with pacifist sympathies. Pacifism is a popular view in Japan -- and
pacifists are speaking out as Prime Minister Junichiro Koizumi seeks to
amend the post-World War II "peace clause" in Japan's constitution to allow
the country to participate in military action abroad.

The coalition is also operating at a time when the misapplication of police
power is fresh in the public's mind because of the Tachikawa Three case.

When privacy issues arise in ways that make sense to ordinary people, people
care about privacy. Ogura says that his students don't oppose closed-circuit
television cameras in the streets, but they do oppose installing them in the
classroom.

The Tachikawa Three prosecution makes the failings of the broad Conspiracy
Law apparent to many Japanese. The challenge for Japanese privacy advocates
is to build on this success, whatever happens with the Conspiracy Law in the
next Diet session. The challenge for U.S. advocates is to make privacy
issues as salient to Americans as the Tachikawa Three case has done for the
Japanese.

- - -
Jennifer Granick is executive director of the Stanford Law School Center for
Internet and Society, and teaches the Cyberlaw Clinic.
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