The Government of Japan signed INTERNATIONAL STATEMENT: END-TO-END ENCRYPTION AND PUBLIC SAFETY on October 11, 2020, together with the United Kingdom, the United States, Australia, New Zealand, Canada, and India. We oppose this statement for the following reasons
(1) It is a clear violation of the "secrecy of communications" clause in Article 21 of the Constitution.
(2) The statement is contradictory in that it emphasizes the significance of encryption, while at the same time demanding that the IT industry introduce technology to weaken encryption so that it can be read and used by law enforcement agencies in exceptional cases. We oppose any exceptions to encryption.
(3) The statement argues that regulation of encryption is essential for the protection of "highly vulnerable members of our societies," but it neglects the aspect that extensive support from human rights activists, journalists, etc., and the privacy of the people involved are also protected by encryption, and that encryption regulation makes "vulnerable people" more vulnerable.
(4) Despite its ostensible reasoning, the statement encourages the creation of a communications infrastructure that would allow law enforcement to exercise privileged authority over the secrecy of our communications, resulting in a surveillance state. It will lead to violations of the right to communication and fundamental human rights of all people, including "vulnerable populations."
For these reasons, we oppose the INTERNATIONAL STATEMENT: END-TO-END ENCRYPTION AND PUBLIC SAFETY and call on the Japanese government to withdraw from this statement.
March 5, 2021
JCA-NET Board of Directors
For more information about baclground of the Statement
https://www.jca.apc.org/jca-net/ja/node/105
Contact:
Toshimaru Ogura(Toshi)
toshi@jca.apc.org
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Background description of the statement (*)
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(1) Background
The relevant government departments involved in the conclusion of this statement are the Ministry of Foreign Affairs, the Ministry of Justice, the National Police Agency, the Ministry of Internal Affairs and Communications, and the Personal Information Protection Commission. The Office for International Safety and Security Cooperation of the Ministry of Foreign Affairs was in charge of compiling this statement. The Office of International Safety and Security Cooperation is responsible for "planning, formulation, and supervision of foreign policy on international cooperation against terrorism, and foreign policy on international organized crime. In the statement, the specific task is to deal with highly vulnerable groups in society, such as sexually exploited children. If this is the case, the question remains as to why the Office of International Safety and Security Cooperation? The Ministry of Foreign Affairs has appropriate departments such as the Human Rights and Humanitarian Affairs Division that are involved in international efforts to deal with vulnerable groups in society. From this point in the statement, the nature of the statement is that national security measures are the main objective.
Among the relevant ministries, we contacted the Ministry of Foreign Affairs, the Ministry of Justice, and the Personal Information Protection Commission, and received the following responses. (February 2021: The following telephone answers are summaries based on JCA-NET, and we have not confirmed the contents with them again)
--Ministry of Foreign Affairs (phone)
The nature of the statement is not binding.
In English-speaking countries such as the U.S., the statement is signed by the minister, but in Japan and India, there is only the country name "Japan" and no individual signatory. There was no clear response as to why this is the case, and we were unable to get a clear answer as to how the document is positioned as a diplomatic document.
When we asked about the Japanese government's efforts since the signing of the statement in October, we received no response from the Ministry of Foreign Affairs. About the Japanese government's efforts since the signing of the agreement in October.
--Ministry of Justice (reply via e-mail)
Response from the Ministry of Justice by e-mail.
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1. which department of the Ministry of Justice will be in charge of this statement?
Answer: The department responsible for responding to your question will be determined based on the specific nature of your question.
2. What laws and regulations are relevant to the end-to-end encryption mentioned in this statement in relation to the domestic laws under the jurisdiction of the Ministry of Justice?
Answer: The Criminal Procedure Law and other laws may be relevant to the operation of evidence collection practices in criminal cases.
3. How did the Ministry of Justice consider the issue before signing this statement?
Answer: We are unable to answer the internal review process.
4. After the signing of this statement and up to the present, what is being considered by the Ministry of Justice, especially in relation to end-to-end encryption?
Answer: We are unable to answer this question, including whether or not we are considering it.
Ministry of Justice
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(Comment by JCA-NET) The Ministry of Justice has no intention of revealing the background and other information regarding the statement. Nevertheless, it refers to the operation of evidence collection practices in criminal cases or the Code of Criminal Procedure, and it seems that the Ministry does not deny the possibility of revising these laws and related regulations to undermine end-to-end encryption in the legal system as well. As the Ministry of Justice continues to prioritize the expansion of the authority of investigative agencies over the constitutional rights of secrecy of communications and civil liberties. It is necessary to keep a close watch on the Ministry of Justice.
--Personal Information Protection Commission (Phone)
- This statement only shows the common understanding of each country, so we do not have in mind to take any action.
- It is not intended to undermine end-to-end encryption.
- At the end of the statement, it says, "We are committed to working with industry to develop reasonable proposals that will allow technology companies and governments to protect the public and their privacy, defend cyber security and human rights and support technological innovation." Commission recognize that privacy is protected.
(Comment by JCA-NET) As we point out in our opposition statement, any technology that allows law enforcement to access content is nothing more than watered-down end-to-end encryption, and words like privacy protection in the statement cannot be taken literally. In this regard, the Privacy Protection Commission should take a clear position against this statement.
(2) Regarding Article 21 of the Japanese Constitution.
The text of Article 21 of the Constitution is as follows
Freedom of assembly, association, speech, publication, and all other forms of expression shall be guaranteed.
2. Censorship shall not be practiced. The secrecy of communications shall not be violated.
According to the Statement, The government requires technology companies to allow investigative agencies to break the encryption on communications protected by encryption. This means that the government is taking the lead in violating the constitutional right to secrecy of communications. The Japanese government cannot act against the Constitution, even in diplomacy. In addition, "strongly requesting the industry" to set up a mechanism (commonly referred to as a "backdoor") that would allow investigative agencies to access end-to-end encryption is a de facto pressure and guidance by government authorities on private companies, and a clear violation of the norms of the Constitution.
(3) On the grounds of protecting "highly vulnerable members of society, such as sexually exploited children"
Regulations on encryption have been repeatedly demanded by governments since the early days of the Internet, and this is not the first time. (For more on the struggle between the government and the cryptographic community over cryptography in the early days, see Simson Garfinkel, PGP : Cryptographic Email and Digital Signatures Encryption for everyone, translated by Unitek, O'Reilly Japan). Cryptographic regulations have been repeatedly advocated with the intention of ensuring the ability of government investigative agencies to intercept and monitor communications in general, and each time, cryptographic regulations have been blocked by privacy groups and civil liberties advocates on the Internet. The motivation for investigative agencies to have a privileged manifestation for cryptanalysis has remained the same from then to now. Only a variety of plausible reasons have been invoked to justify this privilege. It should be emphasized that fundamental human rights such as secrecy of communication and freedom of expression are rights that are protected by imposing restrictions on the authority of investigative agencies.
In general, "vulnerable groups in society" are often the targets of persecution, discrimination and exploitation by dominant groups in society. For these "vulnerable people," encryption is the only way to ensure a secure communication with supporters, journalists, human rights organizations, and the outside world. We have repeatedly experienced that investigative agencies in any country are not always in a position to defend the rights of these "vulnerable people". In this regard, the introduction of technologies that give investigative agencies the privilege of decrypting codes may in fact further threaten the security of "vulnerable people.
(*)Toshimaru Ogura: JCA-NET