• Another clear and helpful essay on Japanese circumstances, for which I am grateful. You don't indicate in your conclusion what legal strategy might be used to overturn the law, given the reluctance of Japanese courts to nullify legislative behavior. But you are correct that this "we must protect the children" rationale is the most dangerous threat to civil liberties on the Net in most of the democracies at the moment.

The last day of the Internet in Japan?

Introduction

The eighteen years old high school student in Kobe Prefecture in Japan killed himself by jumping from the rooftop of his high school because of fear of blackmail. Soon after this incident happened, the police department found out that he was blackmailed by his classmates who took an advantage of the “ura school website”. The critical factor for his death is that one of them distributed his photograph which exposed his nudity in the “ura-school website” when they took off his cloths in the physical bullying.

The “ura school website” is the unofficial and secret Bulletin Board Service which has tons of rumors and f-words on teachers and classmates. Usually, a website is operated by a student. Membership is required in order to join this service. The number of existing websites is increasing day by day. According to the survey conducted by the Ministry of Education, there are more than 38,000 ura-school sites existing in Japan.

Due to the shocks of this incident and increase of public attention on online bullying, the national TV stations and major newspapers reported this incident as the top story. Their reporting attitude toward this was the almost same; “the dangerous and harmful Internet killed a young hopeful boy”.

Political paternalistic reaction stifles the digital civil liberty

The Cabinet office of the Japanese government reacted quickly on this incident. Just one month after this incident happened, they conducted the emergency public survey on harmful information on the Internet. The result was surprising. More than ninety percent agreed with the necessity of the government regulation on harmful information toward children.

Ms. Sanae Takaichi, a member of House of Representatives, belonging to the Liberal Democratic Party (LDP), showed a tremendous willingness to this issue. Because of the result of the survey, she proposed the drastic and controversial bill to protect minors. This draft imposes the website owners to monitor its website whether there is harmful information to minors or not. If there is, website owners need to 1) change it to membership sites or 2) register it as a harmful website to the third party committee established inside the Cabinet Office in order to be the subject of filtering software.

In terms of protecting the civil liberty, this bill has critical problems. First of all, what is the “harmful information” to minors? According to Ms. Takaichi's proposal, the definition of the “harmful information” includes sex, violence, and the information solicits child prostitute, bullying, drag use, suicide, etc. This definition is too vague so that any information can be the subject of the filtering because what is “harmful” depends on each person's feeling. Second, who decides whether information is harmful or not? In the proposed draft, the independent committee inside the Cabinet office defines what the harmful information is. In order to avoid the government censorship, the draft empowers the selected civilians to define it. However, the member of the committee will be selected by the government. It means that it is quite possible to choose members whom the government favored. Third, there will be a huge chilling effect of the freedom of speech in the Internet. As there will be always a risk to be claimed or sued by someone, most of the people rather try not to express their opinions in the Internet. In Japan, because of the conspiracy of the mass media, the Internet is the only media which the people can obtain the various opinions on the policy issues and express their opinions to the world as a private press. If there is no active trade of the expression in the Internet, not only the Internet died, but also the freedom of press diminished.

The battle between freedom and cheap safety

Prime Minister Fukuda has been in struggle for getting popularity form the public. In addition, because the opposition party, Democratic Party of Japan (DPJ), occupy the upper house, he is also facing serious political gridlock. Some important bills were rejected by the upper house and he is losing his power in order to take control of his party, the LDP. One of his policies which he put most focus on is to establish safe and secured country by protecting consumers and minors. This seems to be the only policy for him to take an initiative over both parties because, fortunately for him, the opposition party has a similar interest on this issue. For DPJ also suggested the government regulation on harmful information online. There are some differences between both drafts, but there is a huge possibility that both parties agree with the basic concept of the legislation. That is to say, even though the opposition party has the majority of the upper house, there is no one who stops this notorious bill. As you can imagine, the old mass media kept silence on this matter. They are just waiting for the last day of the Internet.

However, grass-rooted movement for disagreeing with this bill became greater and greater. Movements for the Internet Active Users (MIAU) was established last October for protecting the civil liberty in digital society and spearhead a battle against this bill. In addition, the president of the Parents and Teachers Association clearly announced his objection against the draft saying “this is rather harmful to minors because this draft deprives the children right of information access and freedom of expression.” Even if the draft is in effect, we never should stop the battle. Despite the fact that the Japanese Supreme Court declared unconstitutionality of laws only several times in history, we still need to believe their integrity as the guardian of the constitution like the U.S Supreme Court struck down the Communication Decency Act (Reno v. ACLU, 117 S.Ct. 2329(1997)).

We are on the verge of slipping into the suffocating world. Free world or controlled world with cheap safety? We never forget Mr. Benjamin Franklin's quote; “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

-- FumihiroKajikawa - 07 May 2008

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