The U.N. special rapporteur on the right to privacy has challenged the Japanese government's defense of contentious legislation, adopted last June by the Diet, that criminalizes the planning of serious crimes.
In a written reply to Kyodo News, Joseph Cannataci said the "shortcomings" of the government's arguments regarding his concerns about the respect of the right to privacy under the new law "would presumably be obvious to the most casual of observers."
Cannataci warned in a letter sent to Prime Minister Shinzo Abe in May that the often-called "conspiracy" law could lead to undue restrictions of privacy due to its potentially broad application and a lack of privacy safeguards.
Under the law, members of "terrorist groups or other organized crime groups" can be preemptively punished for carrying out specific actions in preparation for 277 different crimes. Opponents claim the law opens the door to excessive state surveillance and arbitrary punishment of civic groups and labor unions.
The Abe administration has publicly dismissed Cannataci's concerns, including in a letter sent to him in August in which it stated that "the government of Japan has made every effort to sincerely respond to the concerns and questions raised by the special rapporteur."
In his communication with Kyodo News, Cannataci said the government's letter "presents no new reasoning, facts or explanations but merely reproduces arguments already presented within the Japanese parliament."
"It is crystal clear that the letter is a vehicle for polite diplomacy but also that it avoids the substance and realities of most of the concerns expressed in my letter to the prime minister of Japan dated 18th May," he added.
"The Japanese government has yet to indicate as to where, in Japanese law, one may find the privacy safeguards indicated in my letter," Cannataci concluded.
The Abe administration framed the law as an essential tool for thwarting terrorist attacks, of particular importance as Tokyo prepares to host the 2020 Olympics and Paralympics, and as necessary to allow Japan to ratify the 2000 U.N. Convention against Transnational Organized Crime.
The adoption of the law represents a fundamental shift in Japan's penal code, which previously applied penalties only after crimes had actually been committed.
Cannataci told Kyodo News he will be seeking in-depth discussion with the Japanese government as a next step but has decided to wait for the results of the House of Representatives election on Sunday.
"The timing of this next step is uncertain since the prime minister of Japan has dissolved the lower house of the Japanese parliament with snap elections set for 22nd October 2017," he said, adding he would "await the outcome of the elections and afterwards take up the subject directly with the newly constituted Japanese government whoever the new prime minister may be."
A summary of a written reply of Joseph Cannataci.
-- It is my preference to first conduct detailed exchanges with the Japanese government through diplomatic channels and I shall therefore reserve a detailed critique of the letter published by the government of Japan in August for a first airing through those channels.
-- The letter has, however, been put into the public domain by the government of Japan itself and therefore its shortcomings would presumably be obvious to the most casual of observers. Since I would like to reserve detailed critique for direct exchanges with the Japanese government, I shall not here engage in detailed analysis or expressions of opinion.
-- Confirmed by the introductory part of the letter itself, the content of the letter from the government presents no new reasoning, facts or explanations but merely reproduces arguments already presented within the Japanese parliament.
-- The Japanese government has yet to indicate as to where, in Japanese law, one may find the privacy safeguards indicated in my letter. It only mentions requirements for judicial warrants required in the case of criminal investigations and wiretapping but makes absolutely no reference to cases of surveillance which are carried out by methods other than wiretapping by the intelligence services and not by the police. The text of the letter has sought to reassure that additional safeguards are not required by sidestepping a number of issues, including the real way that surveillance is carried out and the interaction between Japan's intelligence services and its police.
-- To anybody who is aware of the use of advanced intelligence technology systems such as XKeyscore for which there is strong evidence of presence in Japan, it is crystal clear that the letter avoids the substance and realities of most of the concerns expressed in my letter to the Prime Minister of Japan dated 18th May.
-- It is my firm intention to follow up these and many other matters in greater detail directly with the government of Japan. However the timing of this next step is uncertain since the prime minister of Japan has dissolved the lower house of the Japanese parliament. I shall therefore await the outcome of the elections and afterwards take up the subject directly with the newly constituted Japanese government whoever the new prime minister may be.