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NarifumiTakeuchiFirstPaper 3 - 12 May 2018 - Main.NarifumiTakeuchi
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Blocking Access to Websites Containing Pirate Editions in Japan
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> | (1) Agreement
First of all, if users allow their ISPs to see the secrecy of any means of their communication, the ISPs can compromise the secrecy.
For instance, when a user tries to access a page on the Internet, she ordinally asks her ISP's DNS server to translate the page’s domain name to its IP address. Then, she accesses the IP address through her ISP's router. In this process, her ISP sees the contents of her communication, such as a destination IP address, so that her ISP seems to violate the secrecy. However, because it is necessary for her ISP to see her communication in order for her to access the page, it can be presumed that she agrees with her ISP's activity at least implicitly. Therefore, in such a case, ISPs are not subject to the violation of the secrecy.
However, when IPSs block users from accessing websites containing pirate editions, it cannot be presumed that the users allow the IPSs to see their communication, because the IPSs see and use their communication not to lead them to access their destination pages but to block them from accessing the pages against their wills. Accordingly, in order to justify such blocking, ISPs need to rely on other exceptions.
(2) Averting Present Danger | | | It is uncontroversial that ISPs and others may justify the violation of the secrecy of any means of communication if meeting the requirements of "averting present danger." Penal Code in Japan Article 37 (1) defines "averting present danger" as "(A)n act unavoidably performed to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable only when the harm produced by such act does not exceed the harm to be averted". See http://www.japaneselawtranslation.go.jp/law/detail/?ft=2&re=01&dn=1&yo=%E5%88%91%E6%B3%95&ia=03&ph=&x=0&y=0&ky=&page=1.
The principle basically consists of the three requirements: (i) a present danger, (ii) an act unavoidably performed, and (iii) equilibrium between interest which the act violates and that which it preserves. For instance, it is generally recognized that if ISPs block their users from accessing websites containing child pornography, the principle of averting present danger could justify the violation of the secrecy of any means of communication caused by such blocking. | | |
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> | Comment Back from Narifumi Takeuchi
Thank you for your valuable comments. I appreciate them.
To answer your comments, I revised my first draft with the underline. I would appreciate it if you could see that.
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