from the censoring-is-censoring dept
Well, that didn’t take long. Over the past few weeks, we have been discussing yet another attempt to introduce a censorious site-blocking program to combat copyright infringement, this time in Japan. While site-blocking is unfortunately now popular in several countries, Japan’s attempt at it is interesting in that the Japanese constitution specifically forbids censorship of this kind save for the need to combat very serious, typically deadly instances. What’s not arguable is that Japan’s constitution intended to allow for a sweeping site-blocking program to combat general copyright infringement. Despite this, and despite the fact that the Japanese government hasn’t bothered to actually put any law in place that would institute site-blocking, at least one ISP decided to get a head start and began blocking access to several websites it determined to be “pirate sites.” The Nippon Telegraph and Telephone Corp., or NTT, did this while saying the government should still get on crafting an actual law for its actions, despite the obvious unconstitutional nature of the whole enterprise.
Because of its actions, it will be NTT that will face the first legal challenge to site-blocking rather than the government, with a private citizen, who happens to be a lawyer, suing the ISP for invading his privacy in order to censor his access to the internet.
Lawyer Yuichi Nakazawa has now launched legal action against NTT, demanding that the corporation immediately ends its site-blocking operations. The complaint, filed at the Tokyo District Court, notes that the lawyer uses an Internet connection provided by NTT. Crucially, it also states that in order to block access to the sites in question, NTT would need to spy on customers’ Internet connections to find out if they’re trying to access the banned sites.
The lawyer informs TorrentFreak that the ISP’s decision prompted him into action.
“NTT’s decision was made arbitrarily on the site without any legal basis. No matter how legitimate the objective of copyright infringement is, it is very dangerous,” Nakazawa explains.
Regardless of the specific legal arguments in this suit, it’s hard to imagine that NTT wouldn’t have seen this coming. Operating without a legal framework to unilaterally censor parts of the internet in a country with a commanding federal legal framework hardened against this very thing was putting the ISPs neck out there, to put it mildly. Why NTT wanted to paint a legal target on its own back rather than waiting for the government and courts to sort this out at the federal level is beyond me. One has to imagine that this lawsuit will be the first of many, if NTT decides to carry on blocking websites. Japanese law is quite clear on the matter, after all.
Breaches of privacy could present a significant problem under Japanese law. The Telecommunications Business Act guarantees privacy of communications and prevents censorship, as does Article 21 of the Constitution.
“The secrecy of communications being handled by a telecommunications carrier shall not be violated,” the Telecommunications Business Act states, adding that “no communications being handled by a telecommunications carrier shall be censored.”
The Constitution is also clear, stating that “no censorship shall be maintained, nor shall the secrecy of any means of communication be violated.”
Now, as TorrentFreak notes, how this specific legal action is adjudicated will likely come down to the technical specifics of how NTT is doing its site-blocking. That and, of course, how Japanese courts interpret that technical implementation.
The question of whether site-blocking does indeed represent an invasion of privacy will probably come down to how the ISP implements it and how that is interpreted by the courts.
A source familiar with the situation told TF that spying on user connections is clearly a problem but the deployment of an outer network firewall rule that simply prevents traffic passing through might be viewed differently.
But what is more clear than anything else is that this lawsuit signals that the Japanese public won’t simply allow ISPs to unilaterally censoring their internet access. Whatever the technical details, Japanese law would make any introduction of site-blocking a matter of deft attempts at skirting the purpose of the anti-censorship laws on the books rather than fully complying with them.
And if we’ve already reached the point that it’s clear the government and NTT are trying to game the system rather than following the law, the public backlash is likely to be heavy.