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In age of cyberwar, Japan's pacifist charter could spell defeat

Legal limits leave Tokyo's hands tied against threats to infrastructure

A cyberattack on infrastructure can plunge a country into a crisis.    © Reuters

Naoya Yoshino is the Tokyo-based head of Nikkei's political news group. As a political reporter, he interviewed 14 Japanese prime ministers, from Morihiro Hosokawa to Yoshihide Suga, and covered the finance and economy ministries. He worked as a Washington correspondent from 2012 to 2017, reporting on the 2012 and 2016 presidential elections.

TOKYO -- Cyberattacks, unfolding out of the public eye, resemble an undeclared war, and losing such warfare can plunge a nation into crisis -- a point Japan has failed to grasp despite rising stakes.

In a news conference after his first summit with Russian President Vladimir Putin in mid-June, U.S. President Joe Biden told Putin that "certain critical infrastructure should be off-limits to attack -- period -- by cyber or any other means."

Without directly responding to Biden's demand, Putin asserted in a separate news conference that "most cyberattacks in the world come from U.S. cyberspace."

The exchange came the month after a ransomware attack temporarily shut down one of America's largest oil pipelines, a major energy artery between the South and the Northeast.

Cyberattacks ballooned ninefold from 2015 to 2020, according to a survey by Japan's National Institute of Information and Communications Technology.

There is no shortage of examples of cyber incidents that have rocked the world. The U.S. and Israel are suspected of involvement in a 2010 attack that took out Iranian uranium enrichment centrifuges. Widespread blackouts in Ukraine in 2015 are believed to have been caused by a Russian hack of the country's power grid.

A ransomware attack against a major U.S. oil pipeline in May drove panic buying and gas shortages.   © Reuters

Infrastructure has not been the only target. After the 2016 U.S. presidential race between Donald Trump and Hillary Clinton, Washington concluded that Moscow had used hacking, among other means, to meddle in the election. Interfering in the selection of a country's next leader, and potentially affecting the outcome, represents an infringement on sovereignty.

In modern times, wars are often preceded by an official declaration and conducted in accordance with international laws of warfare. But cyberattacks are launched silently, and it can be difficult to pin down who is responsible -- a country, an organization, an individual, or even a nonstate actor with state backing.

How prepared is Japan for this new era of warfare? A study of countries' cyber capabilities released in late June by the London-based International Institute for Strategic Studies put Tokyo in the third and lowest tier -- behind the U.S. in the top tier and such countries as the U.K., China and Russia in the middle.

The report cited Article 21 of Japan's constitution, which it says "severely limits the extent to which the government can collect signals intelligence and consequently conduct cyber reconnaissance." Article 21 states that "the secrecy of any means of communication [shall not] be violated."

Washington and Tokyo agreed in 2019 that cyberattacks could trigger Article 5 of their security treaty, which obliges the U.S. to defend Japan if it is attacked. This relies on effective intelligence sharing, but a strict reading of Article 21 would keep Tokyo from providing information to Washington.

"The U.S. infiltrates and monitors networks in potentially hostile nations even during peacetime, thwarting potential cyberattacks against the U.S. as they arise," said Motohiro Tsuchiya, a professor in the Graduate School of Media and Governance at Keio University.

"We can't do this in Japan due to Article 21 of the constitution, Article 4 of the Telecommunications Business Act, the Act on Prohibition of Unauthorized Computer Access, and other legislation," he said. "Intelligence-gathering activities are not considered an exception to these rules, so we cannot take actions that would fall under a gray zone."

Japan's legal system is clearly ill-equipped to deal with the modern threat of cyberattacks. The importance of cyberdefense is putting a different spin on Japan's long-running debate on whether to preserve or amend the war-renouncing Article 9 of the constitution.

"Beyond secrecy of communication, there is the issue of the right to self-defense," said George Shishido, law professor at the University of Tokyo. "Is the right to exercise self-defense in cyberspace permissible? Will a preemptive attack be permissible?"

"In a society where cyber and physical are integrated, what should be the nature of human rights and government authority?" Shishido said. "Cyberdefense should be debated head-on."

But there is no evidence that the constitutional panels in the upper or lower house of Japan's parliament have seriously debated the constitutional implications of cyberdefense. Much as the coronavirus pandemic has shown, there is no room for inaction against the waves of globalization and digitization.

Political inaction is synonymous with negligence, which could lead to a defeat in a cyberwar. To prevent such an outcome, all political parties should spell out their stances on the constitution in relation to cyberdefense ahead of the coming elections and roll out a swift response.

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