March 30, 2017

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Act on the Protection of Specially Designated Secrets (SDS)

In December of 2013 the National Diet passed the Act on the Protection of Specially Designated Secrets (SDS),  which became effective on December 10, 2014. The Act establishes strict penalties for any individual who leaks secret information regarding national security issues. Additionally, the Act broadens the scope of information which the government can deem as a ‘special secret’. This Act has worried a broad swath of Japanese citizens who are concerned about their right to free speech and transparency of the ‘special secret’ designation process.

‘Right to know’ which derives from Article 21 of the Constitution guarantees citizens the right to receive information. The right to know is considered to be the basis of the right to demand the government to disclose information. While the Article 21 doesn’t explicitly state that receivers of information are protected in their right to gain access to information they want, merely that the senders of information have protections for speech. But, it is considered that Article 21 guarantees the right to send and receive infromation.

The punishments set out under the SDS Act are strong.  For some examples, a civil servant can be imprisoned 10 years for releasing secret information while a civilian accused of inciting such activity by a civil servant can imprisoned for up to five. The areas protected under the act are  broad, and include information regarding national defense, diplomacy, espionage and counterterrorism. While the Act explicitly allows only a few individuals to decide which information meets the level of ‘special secret’, in particular the Minister of Defense, Minister of Foreign Affairs, Commissioner General of National Police, and the heads of administrative agencies, it is clear that largely lower-level bureaucrats will be given enormous leeway in the ability to designate information a ‘special secret’. Once again, this will occur without oversight from other government agencies, media or the public (as it will be illegal for the latter two groups to obtain this information).

To add additional protections of secretive information, the Act also will allow for a new ‘proper evaluation’ system to be put into place. This evaluation system is meant for examining civil servants who deal with secretive information, and will allow for such probing questions as: how often one drinks, how much debt one is in, nationality of one’s spouse, and others. While the evaluation system requires government gain consent of civil servants under investigation, it is not difficult to see how this would be interpreted as further violation of these civil servants’ right to privacy. If a bureaucrat is afraid of losing their job over this evaluation system, they are not going to be inclined to refuse such invasive measures.

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