Article Japan: Act on Protection of Specially Designated Secrets

(Jan. 23, 2015) The Act on the Protection of Specially Designated Secrets (SDS Act) that was promulgated on December 13, 2013, became effective on December 10, 2014. (Act No. 108 of 2013, Japanese Ministry of Justice online database (in English).) Under the Act, the head of an administrative organ designates secrets that satisfy the following requirements as SDSs. Those that:

  • have information on the matters set forth in a table appended to the Act divided into four groups: defense, diplomacy, prevention of specified harmful activities, and prevention of terrorist activities;
  • have not been disclosed to the public; and
  • if disclosed without authorization, risk causing severe damage to Japan’s national security and that therefore must be kept secret. (Id. art. 3, ¶ 1; Cabinet Secretariat Preparatory Office for Enforcement of the Act on the Protection of Specially Designated Secrets, Overview of the Act on the Protection of Specially Designated Secrets, Cabinet Secretariat website (last visited Jan. 20, 2015).)

Effective Period of Designation as an SDS

The head of an administrative organ may also specify the effective period of such a designation, not exceeding five years. The period is renewable for up to a total of 30 years. If it is necessary to ensure the safety of Japan and its people, the head of the administrative organ may keep extending the period for another 30 years, with the approval of the Cabinet. The period of designation as an SDS can be extended further upon approval of the Cabinet if the information concerns cryptology, human intelligence sources, or other matters as specified in the Act or in a Cabinet order. The head of an administrative organ must terminate the designation before the expiration of the effective period if the information no longer meets the designation requirements. (SDS Act, art. 4.)

Record-Keeping

The head of an administrative organ must make and keep records of the SDS designations and mark the documents or electric recordings of SDSs. (Id. art. 3, ¶ 2.) The head also must determine the scope of officials who handle SDSs, from among those who have passed a security clearance. (Id. art. 5, ¶ 1.)

Provision of SDSs to Other Agencies or Contractors

Provision of copies of SDSs is limited to specified cases under the Act. When it is necessary for Japan’s national security, the head of an administrative organ that keeps the SDS may provide it to other administrative organs. (Id. art. 6.) The head of an administrative organ may also provide an SDS to an eligible contractor. The types of SDSs that can be provided to eligible contractors are, however, limited and specified in a list attached to the SDS Act. The contract between the administrative organ and the contractor involved must have provisions on the scope of the contractor’s employees permitted to handle SDSs and other necessary measures to protect the SDS. (Id. art. 8.) In these two cases, the administrative organ that receives SDS and the eligible contractor must take necessary measures to protect SDSs and assign SDSs only to officials or employees who are authorized to handle them and have passed security clearances. (Id. arts. 6, 8, & 11.)

An administrative organ is also allowed to provide SDSs to foreign governments or international organizations when they take necessary measures to ensure the protection of the SDSs. (Id. art. 9.) There are several other instances in which the provision of an SDS is allowed under the SDS Act.

Standards

The Act requires the government to formulate standards to ensure uniform implementation in connection with the designation and termination of SDSs and the security clearance process. (Id. art. 18, ¶ 1.) The Cabinet issued the necessary standards on October 14, 2014. (Tokutei himitsu no shitei oyobi sono kaijo narabini tekisei hyoka no jisshi ni kanshi toitsuteki na unyo o hakaru tame no kijun [Standards on Designation, Termination and Proper Evaluation of SDSs to Ensure Uniform Implementation], Cabinet Decision (Oct. 14, 2014), Cabinet Secretariat website.)

The Council for Protection of Information, comprised of non-governmental experts, was consulted when the Cabinet formulated the implementation standards and makes an annual report on the implementation of SDSs to the Prime Minister. (SDS Act, art. 18, ¶¶ 2 & 3.) The Cabinet Committee for Protection and Oversight of SDSs within the Cabinet oversees the designation and termination of SDSs and supervises administrative branches in accordance with the implementation standards. (Id. art. 18, ¶ 4.) Within the Cabinet Office, a position entitled the Independent Public Records Management Secretary was created. The Secretary verifies and oversees the appropriateness of designations of SDSs. (Id. Supp. Provisions, art. 9.) A public prosecutor was appointed as the first Secretary. (Mr. Takafumi Sato for the Independent Public Records Management Secretary = Public Prosecutor, Who Supervises Administration of the SDS Act, JIJI PRESS (Dec. 10, 2014) (in Japanese).)

Penalty Provisions

Violators of the Act face upon conviction a penalty of a maximum of ten years of imprisonment. If a person who is engaged in handling an SDS discloses, without authorization, that SDS which he/she has come to know in the course of performing the duty, he or she is punished with a term of imprisonment of not more than ten years and a fine of not more than ten million yen (about US$100,000). (Id. art. 23.) The same penalty applies to anyone who acquires an SDS by an act of deceit, assault, or intimidation; by theft or destruction of property; by trespassing on a facility; through interception of wire telecommunications; by unauthorized computer access; or by any other act that violates the control of a person who holds an SDS, for the purpose of using that secret to promote the interest of a foreign country, for illicit personal gain, or to cause harm to Japan’s safety or to the lives or persons of its citizens. (Id. art. 24.)

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Japan: Act on Protection of Specially Designated Secrets
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Chicago citation style:

Japan: Act on Protection of Specially Designated Secrets. 2015. Web Page. https://www.loc.gov/item/global-legal-monitor/2015-01-23/japan-act-on-protection-of-specially-designated-secrets/.

APA citation style:

(2015) Japan: Act on Protection of Specially Designated Secrets. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2015-01-23/japan-act-on-protection-of-specially-designated-secrets/.

MLA citation style:

Japan: Act on Protection of Specially Designated Secrets. 2015. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2015-01-23/japan-act-on-protection-of-specially-designated-secrets/>.

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