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Japan's Secrecy Law and International Standards
Published online by Cambridge University Press: 14 March 2025
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In the following article, two distinguished experts affiliated with the Open Society Institute examine key aspects of Japan's 2013 “Specially Designated Secrets Protection Act.” (“SDS”) They are concerned with two central problems: defects in the process that led to adoption of the SDS, and shortcomings in the text of the law itself.
Seasoned observers of lawmaking in Japan are familiar with the scenario that played out in the fall of 2013. The SDS bill law was drafted in secret in the administrative offices of government, rather than by the elected representatives of the people in the national legislature. The resulting “government bill” was presented to the Diet for its approval. Because ruling political parties control large majorities in both houses, debate on the floor of the Diet was a mere formality. Opposition party members were allowed to make comments and question government representatives before national television cameras, but the prospect that this would lead to actual revision of the bill was nonexistent.
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial-No Derivatives licence (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is unaltered and is properly cited. The written permission of Cambridge University Press must be obtained for commercial re-use or in order to create a derivative work.- Copyright
- Copyright © The Authors 2014
References
Notes
1 特定秘密の保護に関する法律 (tokutei himitsu no hogo ni kansuru hōritsu) [Act on the Protection of Specially Designated Secrets] (tentative translation), Act No. 108 of 2013, (Japan) Art. 23(1)-(5).
2 Sanae Fujita, “The Japanese Secrecy Act: A serious step backwards for Transparency, Human Rights and Democracy,” Blogs The Human Rights Center, University of Essex, Aug. 1. 2014, available here; Lawrence Repeta, Raising the Wall of Secrecy in Japan-the State Secrecy Law of 2013, 21 Meiji Law Journal 13, 22 (2014) (discussing deliberations in the diet, and citing numbers from official government report on comments received, available here).
3 Repeta, Raising the Wall of Secrecy in Japan, at 24; The Act on the Protection of Specially Designated Secrets (the “Act”) infringes upon the rights of citizens and the media under Article 19 of the International Covenant on Civil and Political Rights (the “Covenant”), Center for Civil and Political Rights (report of the Center for Civil and Political Rights submitted to the United Nations Human Rights Committee), available here.
4 Id.; Jonathan Soble, Japan passes controversial secrecy law, Financial Times, Dec. 8, 2013, available here.
5 Repeta, Raising the Wall of Secrecy in Japan, at 29; Act on the Protection of Specially Designated Secrets (Japan), Art. 23(1)-(5). See also, Standard for unified implementation related classification, declassification, and security clearance (Japan), “English Standards for Public Comment” English translation by Sanae Fujita (Aug. 2014) (on file with the author).
6 Verne Harris, What is still wrong with the Protection of State Information Bill?, Nelson Mandela Foundation, Oct. 10, 2013, available here.
7 2012 Review, Parliamentary Monitoring Group; National Assembly Approves Controversial Information Bill, Reporters Without Borders, April 23, 2013, available here.
8 Id.
9 2012 Review, Parliamentary Monitoring Group.
10 See Dario Milo Information Bill Needed- just not this one, Times Live, Nov. 27, 2013, available here; Protection of State Information Bill (South Africa) B 6B- 2010, Sep. 5, 2011, available here.
11 Harris, What is still wrong with the Protection of State Information Bill?.
12 David Smith, South Africa Secrecy Law Surprise as Zuma Rejects Controversial Bill, The Guardian, Sept. 12, 2013, available here.
13 Intelligence Identities Protection Act of 1982, 50 U.S.C. §§ 421-426.
14 James M Naughton, Ford Promises Efforts to Restore Confidence in C.I.A., N.Y. Times, Jan. 31, 1976, Proquest Historical Newspapers: the N.Y. Times (1851-2010) with Index (1851-1993), pg 38.
15 See James R. Ferguson, Government Secrecy After the Cold War: the Role of Congress, 34 B.C. L. Rev. 451, at 484 (1993).
16 Proposals to Criminalize the Unauthorized Disclosure of the Identities of Undercover United States Intelligence Officers and Agents: Hearings before the Subcomm. on Legislation of the H.R. Permanent Select Comm. on Intelligence, 96th Cong. 66-84 (1980) (testimony of Mr. Morton Halperin, director of the Center for National Security Studies); Graymail, S. 1482: Hearing before the Subcomm. on Criminal Justice of the S. Comm. on the Judiciary, 96th Cong. 42-53 (1980) (statement of Morton H. Halperin, Center for National Security Studies, accompanied by Alan Adler); National Intelligence Act of 1908: Hearings on S. 2248 before the S. Select Comm. on Intelligence, 96th Cong. 145-180 (1980) (Testimony of Jerry J. Berman, Legislative counsel, ACLU, accompanied by Morton Halperin, Director of the Center for National Securities Studies); HR 6588, The Nat. Intelligence Act of 1980: Hearings before the Subcomm. on Legislation of HR Permanent Select Comm. on Intelligence, 96th Cong. 142-174 (1980) (testimony of Mr. Morton Halperin, Center for National Security Studies); Prepublication Review and Secrecy Agreements: Hearings before the Subcomm. on Oversight of the H.R. Perm. Select Comm. on Intelligence, 96th Cong. 120-176 (1980) (testimony of Mr. Morton H. Halperin, Director, ACLU Project on Nat. Security, and Director, Center for Nat. Security Studies); Intelligence Identities Protection Legislation: Hearings on S. 2216 before the S. Select Comm. on Intelligence, 96th Cong. 87-98 (1980) (testimony of Morton H. Halperin, accompanied by Allen Adler, on behalf of the ACLU); Intelligence Identities Protection Act, S 2216: Hearing before the S. Comm. on the Judiciary, 96th Cong.94-121 (Statements of Floyd Abrams, Attorney; Morton Halperin, Director, Center for Nat. Security Studies, ACLU, Accompanied by Jerry Berman, Legislative Counsel; Ford Rowna, Attorney, and Sol Yurick, Pen American center); H.R. 4, The Intelligence Identities Protection Act: Hearings before the Subcomm. on Legislation of the H.R. Perm. Select Comm. on Intelligence, 97th Cong. 72-92 (1981) (testimony of Jerry J. Berman, Esq. and Morton Halperin, ACLU); Intelligence Identities Protection Act of 1981: Hearing on S. 391 before the Subcomm. on security and Terrorism of the S. Comm. on the Judiciary, 97th Cong. 73-96 (1981) (statements of Morton H. Halperin, Director, Center of Nat. Security Studies, ACLU, and Jerry J. Berman, Legislative Counsel, ACLU);
17 See James R. Ferguson, Government Secrecy After the Cold War, 34 B.C. L. Rev. 451.
18 Lawrence Repeta, Japan's 2013 State Secrecy Act—The Abe Administration's Threat to News Reporting “Japan Focus,” 12 The Asia-Pacific Journal 10, (2014), available here. (Discussing the case of Nishiyama where a reporter for a mainstream news organization was arrested, tried, and convicted of improperly soliciting the leak of a government secret after having received copies of cables showing evidence contradictory to the government's declared position relating to terms of the return of Okinawa to Japanese control from the United States; and the case of Ohta Masakatsu who was threatened by public officials for soliciting information after he conducted a series of interviews with retired senior officials of the Ministry of Foreign Affairs).
19 Japan's State Security Act, 13. See generally Lucy Craft “Japan's State Secrets Law: Hailed by U.S., Denounced by Japanese” NPR, Dec. 13, 2013, available here.
20 Press Conference by Prime Minister Shinzo Abe, Dec. 9, 2013, available here (statement of Prime Minister Shinzo Abe).
21 Lucy Craft, “Japan's State Secrecy Law: Hailed by U.S., Denounced by Japanese” NPR, Dec. 31, 2013.
22 Treaty of Mutual Cooperation and Security between the United States and Japan (日本国とアメリカ合衆国との間の相互協力及び安全保障条約) (Nippon-koku to Amerika-gasshūkoku to no Aida no Sōgo Kyōryoku oyobi Anzen Hoshō Jōyaku), U.S.-Japan, 1960, 11 U.S.T. 1632.
23 Perry, William J., and James R. Schlesinger. “America's Strategic Posture: The Final Report of the Congressional Commission on the Strategic Posture of the United States,” (2009) 70. United States Institute of Peace. United States Institute of Peace Press.
24 Security of Information Act (Canada) Sec. 15, R.S.C. 1985, c. O-5.
25 “Submission for the Periodic Review of Japan” Open Society Justice Initiative submission to the U.N. Human Rights Committee, June 2014. See also, Guja v. Moldova, ECtHR (Grand Chamber), 12 Feb. 2008, paras. 73-77. Bucur v. Romania, ECtHR, 8 Jan 2013, paras. 95-119.
26 Criminal Code (Denmark), Section 152 (e)(2010).
27 Protected Disclosures Act, 5(a), 2000 (N.Z.).
28 See “Tense Diet Passes New Secrets Law,” nippon.com, Jan.9, 2014, available here.
29 See Act on the Protection of Specially Designated Secrets (Japan), Art. 23(1)-(5).
30 Security of Information Act (Canada) Sec. 13(3). R.S.C 1985, c O-5. Sandra Coliver, “US prosecution of Snowden and Manning exceeds international norm,” The Guardian, June 26, 2013; and “Tense Diet Passes New Secrets Law,” nippon.com.
31 Global Principles on National Security and the Right to Information (“The Tshwane Principles”), finalized in Tshwane; South Africa; June 12, 2013, available here.
32 See Open Society Justice Initiative, “Fact Sheet: The Tshwane Principles on National Security and the Right to Information: an overview in 15 points” Open Society Foundations, June 2013.
33 The Tshwane Principles, Introduction.
34 See Tshwane Principles.
35 See Tshwane Principles, Princs. 10(b)-(h).
36 See Tshwane Principles, Princ. 10(a).
37 See Tshwane Principles, Princ. 9 “Information that Legitimately May Be Withheld.”
38 Exec. Order No. 13,526, 33 C.F.R. § 2001 (2014).
39 “Public Comments on the Standards for Uniform Implementation of the Specially Designated Secrets Act” Submitted by Morton H Halperin to the Government of Japan (in Japanese) on Aug 19, 2014, on file with the author.
40 See Maeve McDonagh, Public Interest Test in Freedom of Information Legislation, Univ. College Cork (2013), at pp.4-5, available here.
41 See Tshwane Principles, Princs. 37-40 (guidance on public disclosure); Princ. 41(a) (outlining protection against retaliation).
42 See Tshwane Principles, Princs. 40, 41, 43, and 46.
43 The Self Defense Forces Law preceded the Specially Designated Secrets Act. Revisions in 2001 to the Self Defense Forces law provided the model for the 2013 Act, and established a new category of information called ‘defense secrets’ (bōei himitsu). See Lawrence Repeta, Raising the Wall of Secrecy in Japan—the State Secrecy Law of 2013, 21 Meji Law Journal 13 (2013), available here.
44 A survey conducted by the Open Society Justice Initiative of the laws of 26 countries, found that in 13 countries, in the absence of espionage, treason, disclosure to a foreign state, or intent to cause harm, the law provides for a maximum penalty of five years or less. See “Submission regarding the Standards for Uniform Implementation of the Specially Designated Secrets Act” Open Society Justice Initiative, Aug 15, 2014.
45 Act on the Protection of Specially Designated Secrets, Art. 3 (Japan) Defines the secrecy power “Heads of administrative agencies shall designate as Specially Designated Secrets' non-public information related to the work of their agencies which concerns matters listed in the appendix and is especially necessary to keep secret because release would bring the risk of severe damage to national security.”)
46 See Specially Designated Secrets Act (Japan), Arts. 10, 22.
47 See “An Overview: Fifteen Things the Principles Say: Global Principles on National Security and the Right to Information” Open Society Foundations, June 2013.
48 Specially Designated Secrets Act (Japan), Art. 24 Provides criminal penalties where individuals who acquire a secret by any method that “violates the control of a person who holds a specially designated secret,” acquires illicit personal gain, or causes harm to Japan's Safety by obtaining a secret are punishable by up to ten years imprisonment and up to ten million yen.
49 See “Submission regarding the Standards for Uniform Implementation of the Specially Designated Secrets Act” Open Society Justice Initiative, Aug 15, 2014.
50 Id.
51 See Tshwane Principles, Princ. 3. Requirements for Restricting the Right to Information on National Security Grounds.
52 Id. at Princ. 3(c).
53 Tshwane Principles, Princ. 9. The categories include information regarding the on-going defense plans, operations and capabilities; the production capabilities, or use of weapons and other military systems; information about the specific measures to safeguard the territory of the state, critical infrastructure, or critical national institutions against harm and whose effectiveness depends on secrecy; and information concerning national security provided by a foreign state or international body with an express expectation of confidentiality or other communications concerning national security matters; Tshwane Principles, Princ. 11(b).
54 Specially Designated Secrets Act (Japan), Art 3.
55 Id. at Arts. 3, 10 (1)-(3).
56 “News Navigator: Who will select special state secrets?” Mainichi, 18 July 2014 (English Translation), available here.
57 Id.
58 “Submission regarding the Standards for Uniform Implementation of the Specially Designated Secrets Act” Open Society Justice Initiative, 15 Aug 2014.
59 Tshwane Principles, Princ. 31. Principle 31 provides for states to establish “independent oversight bodies to oversee sector entities including their operations, regulations, policies, finances, and administration.” These bodies should be “institutionally, operationally, and financially independent from the institutions they are mandated to oversee”.
60 Tshwane Principles, Princ. 26.
61 Id.
62 See Tshwane Principles, Princs. 6, 31-33. Princ. 33(d) adds that the law should require security sector institutions to allow cooperation for access and interpretation of information required for their function and Principle 39B(1) calls on states to establish or identify independent bodies, separate from the security sector and executive branch, to review protected disclosures from whistleblowers.
63 See “Submission regarding the Standards for Uniform Implementation of the Specially Designated Secrets Act” Open Society Justice Initiative, 15 Aug 2014 (on file with the author).
64 Id.
65 Sandra Coliver, “Japan's State Secrecy Law Faulted in Human Rights Review,” Open Society Foundations, Voices, 13 Aug. 2014, available here.
66 See “Submission regarding the Standards for Uniform Implementation of the Specially Designated Secrets Act” Open Society Justice Initiative, 15 Aug 2014.
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