1. Japan’s New State Secrets Law
Eric Johnston, The Japan Times

2. 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.

3. 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 . . .

4. 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.”

5. December 2013
Despite massive opposition
within Japan over the autumn
months, the ruling Liberal
Democratic Party-New
Komeito coalition passes the
bill into law.

6. The Four Areas
The Secrets Law Covers:
Defense
Foreign Affairs
Counter-Intelligence
Terrorism Prevention

7. 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.

8. 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

9. 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?’’

10. ``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?

11. 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.

12. 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.

13. Who Opposed
The Law?

14. 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.

15. 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.

16. Who Wanted
The Law?

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

18. 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.

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

20. 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.’’

21. The Ministry of Trade, Economy, and
Industry
The new law allows
the ministry to more
easily classify trade
negotiations like
TPP as ``national
security’’

22. 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.

23. 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.’’

24. 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.’’

25. 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.’’

26. Question:
Why is this provision here?
Constitution already
guarantees freedom of the
press.
Or does it?

27. 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’’.

28. 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.

29. ``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

30. 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.’’

31. WELL, THINK AGAIN
Four Ways in which the New Law
May Impact How The Rest of the
World Deals with Japan

32. 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?

33. 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’’?

34. 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?

35. 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?

36. In Conclusion
The 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.

37. THANK YOU!!!
Questions,
Comments, and
Criticisms Now
Accepted