IGF 2022 WS #414 Secrecy of communications VS Public welfare

Description:

Forfeiture of free circulation of information in wartime Japan was among the causes that gaslit Japanese towards military expansion in the World War. The lack of accurate information, the lack of freedom of expression fueled tragedies -- it was the time people relied on radio and newspapers filled with pro-war propaganda, and whenever any soldiers dispatched to the warzone sought to tell the truth, their letters were censored, and redacted with black ink by secret police before the recipient opened. Countless lives were lost without even knowing that the war was over. In order to apply these lessons to the fostering of democracy in postwar Japan, "secrecy of communication" was not only stipulated in the Constitution, but also strongly and heavily respected, as the two are inextricably linked with "freedom of expression.

The question of whether the public can or cannot trust this communication is also the question of whether the public can trust the data flowing over the Internet.
" Data Free Flow with Trust" or "Data (Free) Flaw without Trust" could make a big difference in the future digital society, to the extent that it could mean the difference between a life of peace of mind and a life of suspicion. (If it is "Without", it is doubtful whether it is "Free" or not.)
With the rapid spread of the Internet, the Internet has become flooded with illegal and harmful information and cyber crimes. However, due to the existence of the very serious and constitutionally enshrined discipline of "secrecy of communication," censorship or blocking of information is not allowed and becomes an illegal act.
On the other hand, the lack of legal regulations has led to a proliferation of the collection of personal information, and the excessive use of privacy data is also a problem.
In Japan, the Constitution and related laws, as well as the "Telecommunications Business Law" for telecommunications, are not designed for telecommunications like the Internet, so legal measures are not always easy to take.
1．Anti-Spam Measures (Legitimate Business Conduct)
Countermeasures against spam mail started around 2000, and a related law was enacted in 2002. In addition, the network-side communication control called OP25B has been considered since around 2005, and has been set by each ISP as needed.
Is this a violation of the "secrecy of communications"? If so, whether the illegality of such control is prevented or not has been examined over the past several years.

2．Measures Against Group Suicide
Suicide "recruiting" has become a social problem, with the number of actual suicides reaching 100 cases per year, as a result of "suicide calls" posted on Internet bulletin boards.
Since "suicide" is not a criminal act, it cannot be easily regulated on the Internet, and therefore, information on the bulletin boards cannot be deleted. Therefore, in most cases, it has become possible to prevent such suicides by providing personal information on those attempting to commit mass suicide to the police and other relevant agencies only when certain conditions are met in a manner that does not infringe on the "secrecy of communications.

3．Measures against Child Pornography
Despite the fact that child pornography is a very serious problem, social interest in the issue has not been very high, but around 2008, the government began to consider blocking as a necessary countermeasure. The government began full-fledged consideration of "child pornography" because it greatly affects the personal rights of minors and because it is unlikely that they themselves would be aware that they are victims. As a result, after five or six years of consideration and several years of demonstration experiments, blocking has been implemented only for this crime in Japan.
However, government involvement may amount to "censorship. In addition, it cannot be said to be completely free of illegality (the possibility of prosecution is not zero), etc. Therefore, it is being operated with caution, with 100% of the costs covered by the private sector.

4．Measures against pirate sites
Pirate sites are another major problem that violates intellectual property rights and is a major issue that appears and disappears one after another. However, unlike child pornography, which is an issue of personality rights, the problem of pirated sites is a property rights issue, and victims can sue for damages themselves. Therefore, various measures are being tried to address this problem without blocking (it is unlikely that the illegality will be actually dismissed in a court of law). The biggest challenge is the lack of servers in Japan on which pirate sites are installed and the networks used to transmit data from those servers to Japan.
I f the pirated sites are located in Japan, there is a law (Provider Liability Limitation Act) that prevents telecommunication carriers from being held liable for removing the pirated sites themselves without waiting for a court decision if the pirated sites are highly criminal. This is an area that needs to be considered internationally, for example, by concluding multilateral agreements.

5．Platformer Regulation
The problem of data collection and information leakage by a group of companies known as "hypergiant" companies has not been easy to follow. The same is true for the filter bubble and echo chamber phenomenon, etc. Because these are social issues that did not exist before the spread of the Internet, and because telecommunications carriers and others are unable to take countermeasures due to "secrecy of communications" and "freedom of expression," or because there are limits to the measures they can take to improve literacy, government regulation has become necessary.

In order to carefully address each of these issues, we have been working with the government as well as telecommunications carriers to understand the nature of the problem, examine how far we can go under current laws, and consider and implement the best possible measures in a way that does not violate the law.
Needless to say, not everything has necessarily gone well. However, as mentioned earlier, constant efforts will be required to determine how to consider and respond to individual interest considerations while protecting the "secrecy of communications" that has supported democracy and liberalism to the greatest extent possible.
In a sense, this may be a total inventory of the rules and laws governing telecommunications in Japan.
In the future, new problems will emerge that are even more complex and multinational in nature. The only question is how to coordinate and deal with those individual issues and public welfare, which will continue to be a major issue.