‘Right to Know’ versus ‘Need to Know’: The Controversy over the Secrecy Law

“Japan is a paradise for spies,” said Stanislav Levchenko, a former Soviet KGB secret agent, after defecting to the U.S. in 1979. He goes on to say that spying in Japan was “very easy” because there was “no legislation punishing divulging secret information.”

Japan’s new ‘Secrecy Law’, which was established on December 13, may change the situation, tightening the control on secret information. Actually, the main purpose of the law is, according to Yuriko Koike, a former Minister of Defense, to “shutter spy’s paradise.”

I am a supporter of the new Secrecy Law, because it will remedy problems concerning the existing law. The main problems of current legislation are threefold: the lightness of punishment, the lack of definition about what kinds of information is regarded as secret, and the narrowness of subject.

The existing law, the National Public Service Act, stipulates that if any official divulges state secrets, they will be punished by imprisonment up to one year, or by a fine of up to 500,000 yen (approx. US$4,800). Compared to other countries’ law for protecting secrets, the punishment is rather light, and thus, weaker as deterrence. For example, the maximum punishment for leaking secret information in the U.S. is capital punishment. In Germany, the punishment for leaking secret information is more than one year of imprisonment, and the maximum sentence is life-imprisonment. In France’s case, any person leaking secret information will face the maximum 15 years of imprisonment or the fine of up to 22,000 euros ($30,000).

As for the lack of definition, currently there is no clear definition on what is ‘secret’ in the Act, and thus officials can arbitrarily designate any document as secrets. Ken Kotani, a professor of intelligence at the National Institute for Defense Studies in Japan, indicates that “since there is no clear rule on what kinds of information should be secret, there is a lot of room for officials’ discretional interpretation.”

Furthermore, the current Act is applied just to officials, not to politicians, which means that there is currently no legislation on restricting politicians from leaking secrets. Here is an example: At a press conference in September 2001, Makiko Tanaka, the then Minister of Foreign Affairs, leaked the evacuation places of the U.S. president in case of emergency, which was of course top-secret. But due to the lack of legislation in Japan, she was not punished for her act, which, understandably, infuriated the U.S. and degraded the credibility of Japan for keeping secrets.

The new Secrecy Law addresses these problems. First, the maximum imprisonment will be extended to 10 years, and the fine to 10 million yen ($95,600). Second, it has a clearer rule on secrets; the object of secret is categorized into four items – defense, diplomacy, malignant actions (i.e., spying) and terrorism – and they are further divided into 23 subcategories. Third, the new law will punish politicians as well as officials for leaking. Thus, the new Secrecy Law will have a stronger deterrent effect on leaking information by politicians and officials, and leave less room for officials’ arbitrary interpretation.[Read more]