Issue:
As the U.S. increasingly cracks down on whistleblowers, Japan may be tempted to wield its new secrecy law and follow suit
Japan’s Special Intelligence Protection Act, commonly called the secrecy law, passed in December over considerable public protest, including a statement issued by the FCCJ. The law allows ministries to classify 23 types of information in four categories defense, diplomacy, counterterrorism and counter-intelligence as special state secrets. This will pertain to information handled by public servants, police officials and contractors.
Some observers have pointed out the similarities between the Abe administration’s new secrecy law and the Obama administration’s “war on whistleblowers.” The U.S. Department of Justice, for example, has recently seized the AP’s phone records, allowed the FBI to pursue James Rosen of Fox News in an attempt to discover his sources, and subpoenaed James Risen of the New York Times, also to force him to name a source.
THE RECENT SECRECY LAW DOES NOT EVEN INCLUDE A WEAK SET OF PROTECTIONS FOR JOURNALISTS
The contentious debate following these examples testifies to the importance of investigative journalism. As the Paris-based organization Reporters Without Borders said in a press release, “Confidential sources are a vital element of a journalist’s profession and without protection, sources are unlikely to come forward in the future and the truth surrounding controversial events may not materialize.”
As the U.S. increasingly cracks down on whistleblowers, Japan may be tempted to wield its new secrecy law and follow suit.
However, in early Sept. 2013, The U.S. Senate Judiciary Committee approved a so-called media “shield law” that would give journalists protection against being forced to disclose confidential information or the identity of a source. This proposal still has “major flaws,” according to Reporters Without Borders, which points out that the proposal is based on a “restrictive definition of who is a journalist.” In its current form, this legislation would, for example, exclude bloggers and other news providers outside of traditional media circles.
But in Japan,the recent secrecy law does not even include a weak set of protections for journalists, and should the Japanese government become determined to pressure a journalist to reveal a source, it remains unclear how far they will be allowed to go. The law simply stipulates that using “unreasonable means” (which are undefined) to gain information from someone who is aware of a state secret is punishable by years in prison. Antisecrecy law activists have pointed out that this law could be used without restraint against reporters or others who seek public disclosure of sensitive information.
In private briefings to foreign journalists, Japanese government officials have offered assurances that the law will not be used in this manner. Of course, what really matters in the long run is not private assurances, but what is actually written into the text of the law.
Japan’s new secrecy law seems unreasonable when compared to standards in developed countries other than the U.S. The Justice Initiative and the University of Copenhagen recently undertook a survey of the laws and practices of 20 European countries. The report concluded: “All of the surveyed states prescribe criminal penalties for the disclosure of classified national security information. However, where there is no espionage, treason or disclosure to a foreign state, the penalties in most countries are far less than in the United States: up to two years in Denmark and the UK; four years in Spain and Sweden; five years in Belgium, Germany, Poland and Slovenia; and seven years in France. Moreover, prosecutions are rare.”
Mizuho Fukushima, deputy leader of the Social Democratic Party, told an FCCJ press conference in late Nov. that she believes the new secrecy law merits comparison with heavy-handed prewar Japanese legislation: “Once you open the door to such kinds of laws, the government will have the right to designate anything as a state secret, and by speaking about it or mentioning it, you can be arrested and prosecuted.”
At present, it appears that journalists covering the Defense Ministry are going to face particularly severe restraints. With diplomatic tensions vis-à-vis China and the Koreas in the background, Japan is developing a host of new weapon systems and other defense equipment. Much of what journalists now routinely report about such matters may soon be designated as special secrets, and the veil may come down on the ability to report to the public. Stories such as the recent report about Sumitomo Heavy Industries defrauding the Defense Ministry on weapons contracts for more than a decade are unlikely to be revealed unless the government chooses to reveal it.
For many years, Japan has been called a “paradise for spies” because of its supposedly weak secrecy legislation, and Tokyo hopes that with the tougher legal regime in place that U.S. intelligence services will now be more willing to share information. Certainly, U.S. officials directly motivated the Japanese government to pursue harsher legislation, and the U.S. State Department was one of the very few international voices to warmly welcome the new law’s enactment.
But even while the U.S. seems to be veering away from its long tradition of protecting media freedoms, many have pointed out that the downward slope could easily be much steeper in Japan, which lacks some of the institutional protections of the U.S. Author Iku Aso, for example, questions whether the government even has the manpower to credibly oversee the process. As the heads of dozens of Japanese ministries and agencies are given the authority to designate new secrets, is it really plausible that the insider framework outlined in this law will have the ability and the will to monitor the process closely?
Nathalie-Kyoko Stucky is a Tokyo-based journalist and member of the FCCJ’s Freedom of the Press Committee.
