MARCH, 2000 JAPAN: Internet Privacy and Related Developments David A. Laverty Privacy Concerns and Wiretapping. A controversial wiretap bill which had faced strong opposition on privacy grounds cleared the Diet on August 12, 1999. Investigators will be better able to fight organized crime through expanded tools to investigate areas such as narcotics, weapons, illegal immigration and murder. Under certain circumstances, the bill would allow police to intercept Internet transmissions and read e-mail. Attendants must be present, such as employees of Nippon Telegraph and Telephone Corp. (NTT). There is a concern in Japan that these powers could be used to infringe the privacy rights of individuals, whether or not Japanese citizens. There is also concern that such wiretapping legislation could lead to pressure to implement restrictions on encryption, since the police would otherwise be unable to conduct "wiretaps" of electronic transmissions sent using strong encryption. Since much electronic commerce depends upon secure transmissions utilizing encryption, encryption controls, if such emerged, could undermine the security of e-commerce in general. Controls on the Use of Personal Information in E-Commerce. Japan does not have a law which governs the handling of personal information in an e-commerce context but instead relies on a system of government-led voluntary guidelines. The hope is that market forces will encourage companies to comply and seek to obtain a "privacy mark." Voluntary guidelines established by the Ministry of International Trade and Industry (MITI) in 1997, known as Guidelines Concerning the Protection of Computer Processed Personal Data in the Private Sector, provide that a person using personal data in e-commerce must specify the purpose of collecting the data and obtain the consent of the person whose data is being collected (such as through clicking a consent button). With limited exceptions, data must be used only for the specified purposes. Except when express consent is obtained or when permitted by law, the following information shall not be collected or disclosed: specific personal data on race or ethnicity, family origin or legal domicile, beliefs, political views or trade union membership, or health, medical treatment or sex life. To improve upon the voluntary actions taken by companies under the Guidelines, MITI in 1998 established a system of granting "privacy marks" to businesses which comply, administered by the Japan Information Processing Development Center (JIPDEC). In response to a company application, JIPDEC will investigate the applying company's compliance efforts and must conclude that the company appropriately manages such personal information. This includes the establishment of an internal structure for handling personal information, education and training for those handling the information, security measures to prevent the theft or leakage of the information and measures to protect the information if it is provided to an external organization. Companies that do not comply with the Guidelines will lose the privacy mark. New Laws to Protect Privacy? Such voluntary compliance codes do not restrict activities such as the buying and selling of marketing lists by those without an incentive to comply. It has been reported that there is an active trade of e-mail marketing lists in Japan, including details such as names, birth dates, e-mail addresses and even blood types. Much of such information is compiled by luring individuals into disclosure through promises of prizes. In part out of a reaction to the wiretapping law and also to a new system of registering residents, additional action to protect the privacy of individuals is to be implemented by late 2002. Japan is discussing whether to adopt comprehensive privacy laws such as in Europe which regulate the private sector, or to follow the more hands-off U.S. approach which combines voluntary restrictions with laws targeted to specific privacy issues. Hiroyuki Umezono at Masuda & Ejiri in NewYork/Tokyo contributed to this update. back to top | update index | home © Copyright 1997-2006, InternationalCounsel. All rights reserved. Disclaimer.