Oops: Japan Anti-Piracy Proposals Probably Violate Its Constitution
from the scmonstituion dept
For over a year now, we’ve been discussing a worrying trend in Japan, where the government is looking to severely ramp up its anti-piracy efforts. The worry lies in the implications of these various proposed programs, including the censorship of internet sites supposedly used for piracy, the criminalization of pirating content, and how all of this is going to impact the public. One of the largest barriers to doing any of these expansions to copyright law is the Japanese constitution and legislation, which are fairly restrictive on matters of both censorship and the invasion of privacy. How the government thought it was going to route around those provisions is anyone’s guess.
But it seems there is confidence that it can do so, as every new proposal coming out looks to in some way violate Japan’s constitution. The latest involves putting a system in place that would delivery popup warnings to anyone visiting a site that is deemed to be a “pirate site.”
Additional proposals suggested that Internet users could be confronted with popup warnings when they visit pirate sites, either as an alternative to blocking, a deterrent, or to help people differentiate them from legal offerings. However, that plan is being viewed as a potential invasion of privacy too. A report compiled this week by an expert panel with the Ministry of Internal Affairs and Communications has concluded that such popup warnings could infringe citizens’ right to secrecy of communications.
Asahi reports that in order to make this kind of system work, Internet service providers would first need to obtain consent from their subscribers so that monitoring their attempts to access certain sites would remain legal. The publication says that after the panel sought opinions from the public on the proposal, it was “bombarded by emails” sent by people calling for the plan to be rejected on privacy grounds.
That this does represent an invasion of privacy not allowed by Japanese law and the constitution is a fairly straight forward conclusion. Is it an invasion of privacy for the government to monitor the internet usage of its citizens? Yes, as Japan’s legal system has already concluded. Can the government serve popup warnings to citizens for visiting certain websites without monitoring what sites they visit? No, it obviously cannot. Where the ambiguity is in any of this is beyond me.
And so it seems the government is pushing ISPs to be their privacy-invading intermediaries.
Nevertheless, some ISPs have agreed to begin trialing a popup warning system during the fall, in order to assess its effectiveness. That will mean them first having to explain to their users that they wish to monitor their online behavior and then obtain legal permission to do so.
Given a choice between being monitored by their ISP or not, it seems unlikely that many Internet users – if they actually understand the proposition – will willingly have someone watch over their communications.
Gee, let’s see. So, the only way this all complies with Japanese law is if the ISPs do the monitoring of sites to serve popup warnings about piracy, but to do so requires the expressed opt-in permission of the very people who are supposedly visiting piracy sites? Dear Mr. Pirate: would you consent to having us monitor your internet usage and warn you when you’re doing pirate-y things?
This is obviously absurd and I expect the plan to be rejected. It would be much better for the entertainment industries pushing these proposals to be transparent in what they really want: a change to the Japanese constitution and law to allow the government and/or private interests to invade the privacy of all citizens, just because they think it will allow them to make a bit more coin without having to adapt to the modern digital world. Although, put that way, it’s hard to see how that flies with the Japanese public either.