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would have been able to provide the informationat their discretion. This certainly raises concernsregarding implications for private citizens whose informationcould be at risk based on these possibleamendments. However, these matters can only beconsidered in relation to the ostensible purposeof INDECOM, which at its foundation is seen as apreserver and defender of human rights and not anagency in opposition to such rights.This case touches on many of the InternationalPrinciples on the Application of Human Ri13hts toCommunications Surveillance. Jamaica continuesto uphold the main understanding that valueshould be placed on the privacy of individuals, andsimply because the state can access communicationsdata does not always mean that the stateshould access such data. There are clearly boundariesand exceptions which are applied, and inthe case of Digicel v. INDECOM, there is no majoropposition to data being provided where there isa “legitimate aim” and adequate “need”. The challengewhich faced the Independent Commissionwas that the laws had not been updated to ensurethat the body was able to legally compel telecommunicationsproviders to furnish subscriber data.Discretionary action was also eliminated as a possibilityin this case because of the wording of therequest to Digicel, and the omission of informationwhich would have made compliance with the requestlegal.The key outcome which must be consideredis the way in which legislation lags behind developmentsin the telecoms sector and the gaps inunderstanding the ever-transforming digital agewithin which we operate. This is true for telecompractitioners, legal persons, law enforcement andordinary citizens.There is also the matter that both major telecomproviders who are in control of telecommunicationsdata are non-Jamaican entities which may also besubject to the laws of the countries in which theywere initially established and countries where theyoperate. The role of such entities in preservingthe human rights of citizens should be explored,13 https://en.necessaryandproportionate.org/textparticularly where communication between countriescan be easily monitored in one country or theother. This is of even greater concern given ourunderstanding, through the Snowden case, thatit is not necessarily the content of communicationwhich may be monitored but also the metadata andbroader patterns of communication.The relevant matters of user notification, transparencyand public oversight are emergent issueswhich should be tackled in the pending Data ProtectionAct.Conclusions and action stepsThere remains a general concern that legislationlags behind developments in the telecoms and ICTsector. This case shows one such example. Seriousconsideration needs to now be given to the powerswhich the state wishes to grant INDECOM, and toall relevant legislation that needs to be updated.These considerations are to be made in relation tohuman rights implications as well as to acceptableexceptions to privacy in line with the internationalcontext.The second recommendation has to do withtraining and capacity building at all levels, so thatpractitioners and ordinary citizens alike will be ableto understand the many issues at work in communicationssurveillance.While the state remains a key area for considerationwhen it comes to communicationssurveillance, it is critical to contemplate how citizens,companies and foreign countries can alsouse communications surveillance to violate humanrights. Countries like Jamaica need to ensure thatlegislation is robust and adequate for these threatsin meeting national objectives and protecting citizens’rights.Finally, the Data Protection Act, which will beunder parliamentary consideration in the near future,needs to take into account the InternationalPrinciples on the Application of Human Rights toCommunications Surveillance. In addition, it is alsonecessary to rationalise the new act with all relevantexisting legislative and policy frameworks.JapanLearning from the pastJapan Computer Access for EmpowermentHamada Tadahisawww.jca.or.jpIntroductionIn 2012 the Japanese government passed legislationthat presents a number of challenges forprogressive civil society activists. Both the socalledCommon Number Law and the State SecretsProtection Law reinforce surveillance regulations.Legislation is also pending that will expand the abilityof authorities to “wiretap” the country’s citizens.These legislative changes can be seen as part of aprocess of the increased militarisation of the country,with startling parallels with changes in Japanahead of World War II.This new security legislation is far from fair,not only in terms of its content, but how it was developed.The bills were approved by the politicalmajority without sufficient deliberations in parliament.The mass media also did not report on thecontroversial points before they were passed.In this report we compare the legal frameworksgoverning communications surveillance today andthose that existed before World War II in Japan. Thisis an attempt to learn the lessons of history so wedo not repeat the mistakes we have made in thepast.Policy and political backgroundThe Japanese government has been trying to developlaws that promote the control of information andsurveillance for decades. It planned to introduce anational identification number in 1968, but everytime it submitted the bill, the mass media stronglyopposed it, and the attempts failed. Eventually, itmanaged to get the resident registry network billpassed, together with a wiretapping bill and billsrelated to defence cooperation, in 1999. At thattime, the Japanese mass media did not report thedeliberations in parliament sufficiently. Instead,they spent all their broadcasting time on a tabloidshow: a verbal battle between Mitchy and Satchy,two on-screen women talents.The government submitted the state secrecybill in 1985, but failed to have it passed. It revisedand submitted a bill on state secrets in 2013, andmanaged to get the bill passed. The law is supposedto come into force in December this year – so thisyear might be one of the turning points in Japanesehistory. Moreover, a conspiracy bill and a revision ofthe Wiretapping Law are anticipated in 2014. This,together with the Common Number Law enacted inMay 2013, suggests Japan is rapidly slipping into aparanoid surveillance state.Here is a list of problematic legislation concerningcommunications surveillance:• The Wiretapping Law (1999)• The Computer Surveillance Law (Cyber CriminalLaw) (2011)• The Common Number Law (2013)• The State Secrets Protection Law (2013).Japan is one of 36 countries which internationalwatchdog The Citizen Lab 1 shows used FinFisher, anotorious surveillance technology used to surveilinternet users.A tale of two Olympic games in TokyoWe need to understand that the legislation promotingthe regulation and control of informationdescribed above is part of a combined approach tolegislative changes prepared over the past years,such as legislation defining the nation’s responseto foreign military attack (2003) and an act dealingwith the protection of citizens in the event of anarmed attack (2004).Many intellectuals have argued that the currentsituation in Japan closely resembles the situationbefore World War II. Because of this, we would brieflylike to compare the run-up to two Tokyo OlympicGames, one scheduled for 2020, and the other in1940, which was cancelled due to the war.That Tokyo will host the 2020 Olympic Gamesis welcome news for many in the country. However,some people are concerned about the strengtheningof the surveillance system for the games, andhow this can be used to control citizens in the future.During the Olympic Games held in London in2012, the security and surveillance system usedthere became the centre of attention. The systemincluded a network of CCTV cameras mounted1 https://citizenlab.org146 / Global Information Society Watch japan / 147