The relationship between Article 29 of the Act on Regulation of Transmission of Specified Electronic Mail and Secrecy of Communications under the Constitution of Japan

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  • 特定電子メール法29条と憲法上の通信の秘密
  • トクテイ デンシ メールホウ 29ジョウ ト ケンポウ ジョウ ノ ツウシン ノ ヒミツ

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Abstract

<p>Article 29 of the Act on Regulation of Transmission of Specified Electronic Mail (hereinafter “Article 29”) allows the Minister of Internal Affairs and Communications to ask for information on senders of certain electronic mail from telecommunications service providers. It is generally understood that the abovementioned information corresponds to information on subscribers, which is allegedly not covered as “secrecy of communications.” As far as this interpretation is concerned, it appears that the relationship between Article 29 and secrecy of communications does not raise any problem. In my view, however, secrecy of communications under the Constitution of Japan protects not only content and metadata of respective communications but also ensures a sound institutional environment for such communications. As part of such an environment, some subscriber information that is closely relevant to metadata such as email addresses are constitutionally protected. However, it is in institutional environments where network safety is not ensured and thus content of communications is readily leaked to others that we find problems in the protection of the secrecy of communications even if there is no problem with the handling of the content or metadata itself by service providers. From this perspective, it is not fair to say that information in Article 29 does not include any “secrecy”, i.e., content and metadata of email communications. It is more reasonable to assume that the acquisition of information based on Article 29 by the Communications Minister is justified as a measure to effectively protect the secrecy of communications of the general public as a whole.</p>

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