OPINION: Japan Expanding Scope of Wiretapping

The government will be expanding the scope of wiretapping by police to target broader types of crimes such as fraud, theft, murder and arson, based on a set of legal amendments related to criminal justice system reform. While eavesdropping on telephone conversations and email communications will give the police more tools to crack down on organized crimes, the expanded use of wiretapping will take on a new meaning as the government pushes to make it punishable for people to conspire to commit a crime without committing the act itself — since that would inevitably require keeping constant watch over suspects.

So far, wiretapping based on court warrants has been allowed in police investigations of four types of crimes — illegal drugs and firearms trade, human smuggling and murders involving an organization. Beginning Dec. 1, the scope will be expanded to cover a wider range of crimes — as part of the reforms that gave police and prosecutors more investigative tools in exchange for making it mandatory for them to electronically record interrogations of suspects in certain criminal cases, a measure intended to reduce the risk of false charges and coerced confessions.

The rules on wiretapping will also be eased. Police investigators have so far needed to go to the premises of telecom operators such as NTT and tap into the communications in the presence of company employees. The change will enable investigators to have the telecom operators send them the coded data on wiretapped communications.

When the issue was being mulled by the Justice Ministry’s Legislative Council, the participants initially discussed expanding the targets of wiretapping to special types of fraud and organized theft, but then added to the list murders in which organized involvement was suspected, assault resulting in injury, arson, and production and distribution of child pornography. Some members of the council reportedly expressed concern that the absence of a requirement for third-party observation of the process may lead the police to abuse the tools in their investigation. What eventually drove the discussion the way it wrapped up was the serious damage incurred by many elderly victims of rampant fraud cases.

Investigations into fraud cases targeting the elderly are hampered by a close division of work among members of the organizations behind the fraud, making it difficult for police to crack down on the leaders even when they have arrested the peripheral members hired to get the money from victims. The police hope that wiretapping will play a crucial role in fighting such crimes.

Wiretapping will no doubt be an effective tool against organized crimes. But its broad use as an investigation tool risks keeping people under surveillance. And there is concern that the scope of wiretapping by police will expand even wider if, as the government seeks, it becomes a crime for people to merely conspire to commit crimes.

The government’s past legislative attempts to create the “crime of conspiracy” were scrapped three times in the Diet amid strong opposition. Proponents have stressed the need for such a law as a domestic step that Japan has to take to ratify the 2000 United Nations treaty against organized crime, saying that Japan is among only about a dozen U.N. members that have not ratified the convention due to the lack of such legislation. Opponents charge that such a broadly defined crime can be applied at the discretion of investigation authorities, and say that Japan already has laws that punish people for preparing to commit a range of serious offenses such as murder.

In the latest attempt, the Abe administration has prepared legislation that purports to penalize “preparing for terrorism and other organized crimes,” casting it as an anti-terrorism measure ahead of the 2020 Summer Olympic Games in Tokyo. Compared with the earlier aborted bills, the proposed legislation limits its targets to “organized crime organizations” and penalizes two or more people for actually preparing for crimes, such as by raising money for their acts, instead of merely plotting and agreeing to commit the offenses. The administration appears to have given up submitting the legislation during the current Diet session but is expected to submit it during the regular session next year.

The necessity of such legislation aside, punishing people in the preparation stage of their crimes would inevitably require investigators to keep close tabs on the activities of their suspects. Wiretapping will likely be an even more crucial tool in investigations to keep the suspects under surveillance, gather relevant information and take action before they commit crimes. Since the planned legislation will cover more than 600 types of crimes, it can be expected that the scope of wiretapping will be further expanded to target more types of crimes.

The police reportedly already have their eyes set on a measure that would allow investigators to place bugging devices in the houses and offices of people and organizations under criminal suspicion to listen in on their daily conversations. Such a measure was proposed in the discussions at the Legislative Council but was shelved for “consideration in the future,” as concerns were raised over infringements on privacy. Beefing up measures against organized crimes is necessary. But we also need to discuss where to draw the line to prevent the measures from putting our privacy at risk.