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.

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Comments on “Oops: Japan Anti-Piracy Proposals Probably Violate Its Constitution”

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Anonymous Coward says:

And don’t forget that being caught for pirating in Japan means serious business: up to 2 years for downloading and 10 for uploading jail sentences, iirc.

The problem is that considering Japanese society, you’re pretty much fucked up just for being arrested. You lost your job and expect the death of your social life too.

"Due process" is a word that doesn’t exist in Japanese (and if it does, their society ignores it) nor in Piratese dictionaries (you know what you’re doing), so you can expect to be pretty much fucked up once caught.

And what’s more self-incriminating than a "friendly" warning pop-up that tells you that you’re entering into a pirate say, even if it isn’t?

Still, don’t lose hope in Japanese people agreeing to having their browsing monitored. Sure, some will complain, but Japanese as a whole are so bent in "doing the right thing" that it reaches stupid levels, so there are idiots that will agree.

Want an example? In Japanese schools dying your hair isn’t allowed. That means that Japanese students are expected to have their hair black.

Now, what about people whose natural hair isn’t black? Well, in some places they are forced to dye it black, to look "Japanese", entering into a some kind of Catch-22 situation where they are breaking the rules to follow those rules.

Scary Devil Monastery (profile) says:

Re: Re:

"Still, don’t lose hope in Japanese people agreeing to having their browsing monitored. Sure, some will complain, but Japanese as a whole are so bent in "doing the right thing" that it reaches stupid levels, so there are idiots that will agree."

Sadly, this is true. Japanese culture is centered around the concept of "harmony" to an extent most westerners will find it hard to wrap their heads around.

Think of that stereotypical rustic small village a bit to the side of the beaten track. Tourists visit it because it’s so idyllic and you can live there for years admiring the polite and well-mannered residents who all seem to live perfect lives.

Twenty years down the road you may start finding out that the neighbors last wife vanished under mysterious circumstances, there’s a good reason everyone pretends the old eccentric at the edge of town doesn’t exist, and even though the casual bully in school is a rapey asshole who kills small animals for fun no one, even the victims, will do anything other than suck it up and try to forget about the abuse, because the one who makes the waves is the sinner. Conformity is key.

That’s basically the darker side of japanese society in a nutshell. "conflict" is just rude. When #MeToo took the world by storm, in Japan society as a whole was outraged because the victims were so damn rude as to rock the boat in public.

There are plenty of good points in japanese culture. It’s rich, vibrant, classy, and incredibly polite. In japan, you expect things to work exactly as advertised.

But there is a flip side of that coin, and the casual way citizens are expected to conform rather than question is a large part of it.

GHB (profile) says:

Anti-piracy leads to anti-privacy

Looks like japan is taking some footsteps and some inspirations on how the US was originally planned (and scrapped or canceled) their anti-piracy enforcement:

Site blocking -> SOPA. Because many websites use HTTPS, blocking individual pages is impossible, you can only have the entire site fully accessible or not at all. Because of this, and how the internet works with uploading content, the internet would’ve became a dead zone if this passes, effectively treating all sites that let you upload stuff the same as pirate sites, since it is possible to upload infringing content anywhere.
Warning messages -> Copyright Alert System/Six strikes program. People feared about a lack of due process system: https://en.wikipedia.org/wiki/Copyright_Alert_System .

I’ts like a difficult decision for a store to have surveillance cameras for the bathrooms as crooks use those as an escape for shoplifting.

Anonymous Coward says:

constitution violations

well, I doubt that Japanese politicians have any more integrity than our American politicians — and our guys smugly violate our constitution in a thousand different ways every day.

problem is that constitutions and law don’t offer much lasting protection to citizens. the actual people with the power to create, interpret, and enforce law have very broad discretion to do whatever they want, despite any old ink splashed on old paper (constitutions)

Anonymous Coward says:

You can see now why Japan wanted TPP to pass.

Had TPP come into force, the constitution of every country that ratified would be overridden by the TPP.

That includes the US Consittution, as Congress would have been given licence to piss on the constitution when writing laws to implement TPP.

TPP was crafted to effectively make the constitution of every country that signed null and void when it came to making laws to implement it.

Anonymous Coward says:

Re: Re:

But that’s not how it works. Changes to the US constitution require a two-thirds majority vote in both the House of Representatives and the Senate or a constitutional convention called for by two-thirds of the State legislatures.

Realizing the above is too difficult for them, they stack the scotus with their lackeys who will "interpret" what the constitution says in ways that allow them to do what ever they want. Or, they just do it and cover it up.

Anonymous Coward says:

Re: Re: Re:

It would happen that the US Congress wouldn’t be allowed to ratify the TPP.

Unless the SCOTUS said that the provisions of the TPP were constitutional wink wink wink.

Not sure about US law, but in general Law principles, once something has been under review of a judge, it’s considered res iudicata, unless there are means to appeal that.

Considering we are talking about the SCOTUS, once they deem a treaty as fine, then it’s fine and all its provisions according to US Law and Constitution.

Anyway, if a country signs a treaty that is deemed unconstitutional, it might not apply to them, but then the fines and remedies provided in such agreement would apply to the country, according to International Law.

Either at some point they’d leave the agreement, either under the provisions of the agreement itself or under International Law if the agreement doesn’t have such provisions, or they’d be paying fines in seculam seculorum.

Scary Devil Monastery (profile) says:

Re: Re: Re:

"Changes to the US constitution require a two-thirds majority vote in both the House of Representatives and the Senate or a constitutional convention called for by two-thirds of the State legislatures."

There’s a loophole there. SCOTUS can overturn any legislation made in the US…
…but considering that most of the treaty provisions covers interaction with other sovereign nations it gets difficult. The treaty can be signed without SCOTUS being allowed to peep, and the treaty then demands the US implement legislation which can impact constitutional protections.

It’s mainly these later laws which may invite SCOTUS investigation, but there are thousands of ways to phrase said legislation in a way which makes obtaining an actual case example to push to the supreme court difficult.

Anonymous Coward says:

That’s ok. Im sureJapan will take a leaf out of the USA book and ignore it, get courts to validate yhe bits needed so that durveillance can be carried out, arrests can be made and prosecutions done. Whenever something happens, law enforcement always finds a way to ignore or bypass citizens rights, constitution or otherwise, just to please whichever body, usually financial and usually corporate, that says IT’S rights have been infringed and its bottom line damaged. Money being so much more important than any human rights, including life!

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