Legal vacuum surrounding the protection of secrecy of communications under the Telecommunications Business Act of Japan and legislative suggestions for it

Abstract

The Telecommunications Business Act of Japan does not protect the secrecy of communications handled by those who, dealing with confidential information, correspond neither to telecommunications carriers nor to those who operate telecommunications businesses, such as operators of bulletin board systems without having facilities. This is presumably not the outcome of legal policy but of the situation where legislators fail to keep up with the increase in the number of such operators, which has led to creating a “legal vacuum of protection on communications under the Act.” In order to improve the situation, it is necessary to amend the notion of “telecommunications service” to encompass not only the act of mediating and providing facilities for telecommunications between others but also the act of “virtual mediating” that intermediate such telecommunications without involving transmission of information. It will also be necessary to ensure secrecy of communications handled not only by telecommunications carriers (except for those who do not deal with confidential information) but also by “telecommunications service providers” engaging in virtual mediating. As increasing number of providers are engaging in virtual mediating and such providers are gradually diversified, it is increasingly important to reconstruct the notion of telecommunications service providers as well as the legal range of secrecy of communications under the Act.