Cyberlaw 2004

Cyberlaw
A Speech at Hang Zhou University of Commerce and Technology
September 2004
Takato Natsui
Professor, Meiji University Faculty of Law
1. Introduction
My book “電子署名法” [The electronic signature law] will be recently publishedin Chinese with the support of some wonderful friends and colleagues in China. To have
my book published in Chinese is a tremendous honor. I would like to take thisopportunity to express my deepest gratitude and appreciation to everyone who
cooperated with the Chinese translation.
I was asked by my Chinese colleagues if I would give a lecture at Hangzhou
University of Commerce and Technology to mark the publication of the Chinese version
of my book. I was deeply honored and gladly accepted.
China and Japan have had close ties since ancient times. Japanese archeologists
believe that China and Japan have had close cultural and industrial relations for at least
2000 years. There are references to Japan in ancient Chinese history texts such as 魏志倭人伝 [Wei Chih] and 漢書東夷伝 [Han History].
During their long history, there have been periods when China and Japan had
friendly relations, and other period when their relations were not so fortunate.
Throughout this extremely long period of exchange, however, numerous aspects ofChinese culture and systems merged into Japanese culture and social organizations.
Confucianism, Taoism, and Buddhism were all conveyed to Japan from China. Manyother aspects of culture were also brought from China including wood building
construction, ceramics, music, and calligraphy, to name just a few. Some of these items
made their way to Japan via Korea, while other came directly from China.
While in high school and university, I studied extensively about Chinese philosophy,
arts, and history from the 殷 [Yin] and 周 [Zhou] Dynasties right up to the People's
Republic of China. Among the innumerable notable persons who appear in Chinese
history, I particularly admire 顔眞卿 [Yan Zhenqing] (709-785) of the 唐 [Tang]
Dynasty and 岳飛 [Yo Fei] (1103-1141) of the 宋 [Song] Dynasty. These two militarycommanders are renowned for their calligraphy and are known as wonderful educators.
When I was in school, I studied ”文武両道” [scholarship and the martial arts] and “君子和而不流” [The gentleman is friendly but not easy to delude into following otherpeople.]. 顔眞卿 [Yan Zhenqing] and 岳飛 [Yo Fei] were truly great men who
embodied “文武両道” [scholarship and the martial arts]. “君子和而不流” [Thegentleman is friendly but not easy to delude into following other people.] is a termfound in the 中庸章句 [Doctrine of the Mean] by 朱子 [Chu His], a true expert on1

Cyberlaw 2004

ancient texts, and has the same meaning as the phrase ”君子和而不同” [The gentleman
is friendly but a person of principle.] found in 論語 [The Analects of Confucius].
Confucianism as a fundamental state policy was clearly rejected in China and Japan
during certain periods. Nonetheless, I believe that the words and life philosophies ofgreat historical persons are still worthy of study even today. In today's modern society,as international exchanges become ever more common and relations between states
becoming close, leaders in every field must have a strong sense of a spirit of “君子和而不流” [The gentleman is friendly but not easy to delude into following other people.].
In other words, in modern society, be it in China or Japan, we must maintain a strong
sense of pride in our own ethnicity and culture even as we seek friendly and harmonious
international relations. Modern society demands that all individuals address this type of
extremely difficult issue. As expressed by 論語 [The Analects of Confucius] and ”温故
知新” [an attempt to discover new things (truths) by studying the past through scrutinyof the old], during its long history, China has confronted innumerable complex foreign
relations issues. And we can learn much by studying them. In this way, I personallyhave absorbed much of Chinese culture and philosophy.
I have had the opportunity to participate in numerous conferences concerning cyberlaw in various cities and at many different universities around the world. My first visit
to China however, is to Hangzhou. Hangzhou has extremely close ties to 顔眞卿 [YanZhenqing], 岳飛 [Yo Fei], and 朱子 [Chu His]. For this reason, I am deeply moved
that my first visit to China is to Hangzhou.
2. Structural Changes in the Modern World
Modern society is founded on information networks such as the Internet. It goes
without saying that in modern too, it is living people who engage in day-to-day
activities, labor, and perform various works. The vast majority of our lives arecompletely unrelated to network technology. Individuals form close ties of affection
with each other. Familial bonds too mean nothing without emotional ties. In shops,
transactions are conducted between shopkeepers and customers. Many of the problems
that occur in society arise because of intertwining human relationships. In addition, it is
the job of the police to catch criminals, and the job of the courts to punish them.
In modern society, however, an extremely large number of jobs make use of
information network technologies applied to computer systems. As a result, it ispossible for people who live at extreme distances to perform a variety of jobs. There are
numerous Chinese companies that use information networks to engage in businessglobally. Even in fields such as animation and film, many Chinese companies, likecompanies in Japan and South Korea, have come to use computer image processing
extensively, and they are advancing into markets throughout the world.
In a society based on information networks in such a manner, it is important that wetake incidents from the past as lessons. In China and in Japan, we have to consider
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together the solutions to common problems. For example, in a network-based society, it
goes without saying that the physical structures of information networks must be madesecure. At the same time, it is also necessary to establish and implement properly thelegal structures to ensure that transactions conducted using information networks arecarried our safely. When the reliability of transactions using information networks
cannot be ensured, economic development cannot be hoped for, and the results ofeverything that has already been accomplished will be for nothing.
The legal structures that are used to ensure the safety of information networks arequite diverse. Criminal statutes to punish persons who gain improper access to
information systems, who cause damage such systems, and who commit fraud arenecessary. It is also important to reconsider basic laws such as the Civil Code and theCommercial Code from the perspective of international coordination among the various
laws that govern transactions. This is true for both China and Japan. Also necessary arelegal systems to protect the electronic structures that safeguard transactions using
information networks and to establish that the parties to transactions are really who they
say they are. The Electronic Signature Law may very well be the most important single
element within that legal structure.
Today in Japan, in addition to electronic signatures used by private companies as
specified in the Electronic Signature Law, there is also an electronic notary system
operated by public notaries and a public identification certification service operated by
local governments. As these systems were instituted after publication of my book, it
does not discuss electronic signatures or the electronic certification system in Japan. It
does, however, explain the fundamentals and the ideas behind electronic signatures andelectronic certification systems, and it has been read by many people in Japan. Even
today, it continues to be read by many people. In order to show the importance of theElectronic Signature Law, the book also explains the uniqueness of legal incidents thatcan occur in cyberspace and comments on the Japanese Civil Code and other statutes
that regulate business transactions. Consequently, I believe that this book can be of
considerable reference value to legal scholars, entrepreneurs, and students who wish tolearn about transactions based in information networks and the legal systems around theworld that regulate them.
As the author of this book, I would be greatly honored and pleased if it could assist
in China's secure and steady economic development and contribute to the growth offriendly relations between China and Japan.
I will be discussing on the unique characteristics of the cyber world and on thevarious legal issues that can arise in there.
3 What is Cyberspace?
The word “cyber” most likely came into widespread use starting in the United3Cyberlaw 2004

States during the 1940s when Norbert Weiner and his colleagues developed the idea ofcybernetics. Weiner referred to the existence of a feedback function as an internalfunction regardless of whether it is possessed by a living organism or an inanimate
object as “cybernetics.” This term is the origin of other words such as “cyborg” and“cyberspace.”
The American author William Gibson wrote a number of science fiction novels in
the 1980s that take place in cyberspace. The most famous of his novels is Neuromancer.
After a number of Gibson’s novels attracted considerable attention, it become not only
trendy to refer to the space on information networks such as the Internet as cyberspace,but went on to become commonplace.
Cyberspace is sometimes explained as a “virtual space.” Although it is virtual, thisdoes not mean that cyberspace does not exist.
A key point in comprehending cyberspace and the various conflicts that can occur
in cyberspace is due to understand that cyberspace is not imaginary, but is a part ofreality.
The Internet is a representative example of cyberspace. It is true that the Internet is
no more than a collection of electronic signals. It appears that the Internet exists on yourmonitor. The Internet, however, is not imaginary and is an actual part of reality.
4 Cybercrime
It almost goes without saying that crime also takes places in cyberspace. Sometypical examples are unauthorized access to others’ computer systems and Internet fraud.
These types of crimes are referred to as cybercrimes.
Cybercrime is not a type of crime that affects only certain people in certain
countries. Cybercrime can occur anywhere in the world where it is possible to accessinformation networks such as the Internet, and anyone, located anywhere, can become avictim of cybercrime.
As a result, many countries around the world are promoting international measures
to deal appropriately with cybercrime. The European Union Convention on Cybercrime
is a typical example. Countries that are not members of the EU are also seeking to ratify
this Convention, and Japan is taking the measures necessary to acceded to it.
The Convention on Cybercrime (ETS 185)1 provides that the following are thetypes of crimes concerning which the laws of different countries should be coordinated.
These are considered the most serious cybercrimes.
Article 2 – Illegal access
Each Party shall adopt such legislative and other measures as may be necessary toestablish as criminal offences under its domestic law, when committed intentionally,1

http://conventions.coe.int/Treaty/en/Treaties/Html/185.htm
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the access to the whole or any part of a computer system without right. A Party may
require that the offence be committed by infringing security measures, with theintent of obtaining computer data or other dishonest intent, or in relation to acomputer system that is connected to another computer system.
Article 3 – Illegal interception
Each Party shall adopt such legislative and other measures as may be necessary toestablish as criminal offences under its domestic law, when committed intentionally,
the interception without right, made by technical means, of non-public
transmissions of computer data to, from or within a computer system, including
electromagnetic emissions from a computer system carrying such computer data. A
Party may require that the offence be committed with dishonest intent, or in relation
to a computer system that is connected to another computer system.
Article 4 – Data interference
1. Each Party shall adopt such legislative and other measures as may be necessary
to establish as criminal offences under its domestic law, when committed
intentionally, the damaging, deletion, deterioration, alteration or suppression ofcomputer data without right.
2. A Party may reserve the right to require that the conduct described in paragraph 1
result in serious harm.
Article 5 – System interference
Each Party shall adopt such legislative and other measures as may be necessary toestablish as criminal offences under its domestic law, when committed intentionally,
the serious hindering without right of the functioning of a computer system by
inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing
computer data.
Article 6 – Misuse of devices
1. Each Party shall adopt such legislative and other measures as may be necessary
to establish as criminal offences under its domestic law, when committed
intentionally and without right:
a. the production, sale, procurement for use, import, distribution or otherwise
making available of:i. a device, including a computer program, designed or adapted primarily for the
purpose of committing any of the offences established in accordance with Article
2 – 5;
ii. a computer password, access code, or similar data by which the whole or any
part of a computer system is capable of being accessed5Cyberlaw 2004

with intent that it be used for the purpose of committing any of the offences
established in Articles 2 - 5; andb. the possession of an item referred to in paragraphs (a)(1) or (2) above, with intent
that it be used for the purpose of committing any of the offences established in
Articles 2 – 5. A Party may require by law that a number of such items be possessed
before criminal liability attaches.
2. This article shall not be interpreted as imposing criminal liability where theproduction, sale, procurement for use, import, distribution or otherwise making
available or possession referred to in paragraph 1 of this Article is not for the
purpose of committing an offence established in accordance with articles 2 through5 of this Convention, such as for the authorized testing or protection of a computer
system.
3. Each Party may reserve the right not to apply paragraph 1 of this Article,
provided that the reservation does not concern the sale, distribution or otherwise
making available of the items referred to in paragraph 1 (a) (2).
Article 7 – Computer-related forgery
Each Party shall adopt such legislative and other measures as may be necessary toestablish as criminal offences under its domestic law, when committed intentionallyand without right, the input, alteration, deletion, or suppression of computer data,
resulting in inauthentic data with the intent that it be considered or acted upon forlegal purposes as if it were authentic, regardless whether or not the data is directly
readable and intelligible. A Party may require an intent to defraud, or similar
dishonest intent, before criminal liability attaches.
Article 8 – Computer-related fraud
Each Party shall adopt such legislative and other measures as may be necessary toestablish as criminal offences under its domestic law, when committed intentionallyand without right, the causing of a loss of property to another by:a. any input, alteration, deletion or suppression of computer data,b. any interference with the functioning of a computer system,with fraudulent or dishonest intent of procuring, without right, an economic benefit
for oneself or for another.
It is important to understand that cybercrime is not limited to the destruction ofcomputer systems and fraudulent conduct, as you can see from the types of cybercrimes
listed in the Convention. The elimination of harmful content such as child pornography
and the prevention of infringement of copyrights on networks are also extremely
important issues. Conduct such as obstructing or interfering with electronic commerceon network systems also falls within the scope of cybercrime.
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It is noteworthy that cybercrime is rather common on Japan. According to statistics
released by the Japanese National Police Agency, the number of people arrested forcybercrimes has increased as indicated in the diagram.

Auction on the computer network
Fraud and related malicious trading
Defamation
Malicious contents
Unsolicited e-mail message
Unauthorized access, computer virus etc.
Others
Total

2001
2,099
1,963
2,267
3,282
2,647
1,335
3,684
17,277

2002
3,978
3,193
2,566
2,261
2,130
1,246
3,955
19,3292003
5,999
20,738
2,619
4,225
2,329
1,147
4,697
41,754

Table1: the number of complaints relating to Cybercrime
Also Table 2 shows an increase in the total number of arrested people in the past
three years.
2001
2002
2003
Unauthorized computer access
35
51
58
Computer crimes on Penal Code63
30
55
(Illegal electromagnetic record)
(11)
(8)
(12)
(computer interference)
(4)
(4)
(9)
(computer Fraud)
(48)
(18)
(34)
Other crimes by means of network systems
712
958
1,083
(prostitution of children)2
(117)
(268)
(269)
(child pornography)
(128)
(140)
(102)
(fraud)
(103)
(112)
(86)
(obscenities)3
(103)
(109)
(113)
(Intimidation)
(40)
(33)
(38)
(copyright infringement)
(28)
(31)
(41)
(defamation)
(42)
(27)
(46)
Total
810
1,039
1,196
Table 2: the number of arrested persons relating to computer crimes
In response to these developments in cybercrime, the Japanese government is
2

The prostitution of children has been taking place mainly at the meeting points on the Web or via
mobile phones.
3
This number doesn’t include the number of child pornography.
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Cyberlaw 2004

revising laws such as the Criminal Code and the Code of Criminal Procedure. Of course,
like China, Japan has a law penalizing unauthorized access to information systems.
Many cybercrimes, however, are not limited to just unauthorized access. Consequently,
among the proposed revisions to Japanese law is one to penalize the production of
unlawful computer software such as computer viruses.
Proposed amendment bill of the Penal CodeArt. 168bis
1. A person who has, for the purpose of use for computer systems of another person,
produced or provided an electromagnetic record or other records as follows shall bepunished with penal servitude for not more than three years or a fine not more than
five hundred thousand yen;
(1) an electromagnetic record which gives a wrongful instruction to the electronic
computer systems of another person by making them not to act to be fit for the
purpose of proper use or making them to act contrary to the purpose of proper use;
(2) in addition to those provided for in the preceding subparagraph, anelectromagnetic record or other records in which the wrongful instruction undersaid subparagraph has been recorded.
2. The same shall also apply to a person who has used the electromagnetic record
under paragraph 1 for computer systems of another person.
3. Attempts of paragraph 2 shall be punished.
Art 168ter
A person who has, for the purpose of paragraph 1 of the preceding Article, obtained orretained the electromagnetic record or other records under subparagraphs of the said
paragraph shall be punished with penal servitude for not more than two years or a finenot more than three hundred thousand yen.
5 Computer Securities
Even if we respond to cybercrime by penalizing it, there are issues that cannot be
addressed until after a cybercrime has been committed. As a result, efforts to prevent
cybercrime, and when cybercrime does occur, to take technological measures tominimize the harm resulting from cybercrime are also needed. This type of technology
measure is referred to as computer security.
There is even a field of scholarship that researches methods for preserving
electronic and other evidence that establishes that a cybercrime was committed,
analyzes it, and presents it to courts. This field of study is generally referred to ascomputer forensics.
Computer security is an extremely important issue in all countries. Moreover, there
are numerous issues that require global efforts to enhance computer security.
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Cyberlaw 2004

In 2002, the Organization for Economic Cooperation and Development issued adocument entitled OECD Guidelines for the Security of Information Systems andNetworks: Towards a Culture of Security4. Countries around the world are observing
these guidelines and adopting them as their national security policies.
Aims:
These Guidelines aim to:− Promote a culture of security among all participants as a means of protecting
information systems and networks.
− Raise awareness about the risk to information systems and networks; the policies,
practices, measures and procedures available to address those risks; and the needfor their adoption and implementation.
9− Foster greater confidence among all participants in information systems andnetworks and the way in which they are provided and used.
− Create a general frame of reference that will help participants understand security
issues and respect ethical values in the development and implementation ofcoherent policies, practices, measures and procedures for the security of
information systems and networks.
− Promote co-operation and information sharing, as appropriate, among all
participants in the development and implementation of security policies, practices,
measures and procedures.
− Promote the consideration of security as an important objective among all
participants involved in the development or implementation of standards.
Principles:
1) AwarenessParticipants should be aware of the need for security of information systems andnetworks and what they can do to enhance security.
2) Responsibility
All participants are responsible for the security of information systems andnetworks.
3) Response
Participants should act in a timely and co-operative manner to prevent, detect and4

http://www.oecd.org/dataoecd/16/22/15582260.pdf
9Cyberlaw 2004

respond to security incidents.
4) Ethics
Participants should respect the legitimate interests of others.
5) Democracy
The security of information systems and networks should be compatible withessential values of a democratic society.
6) Risk assessment
Participants should conduct risk assessments.
7) Security design and implementation
Participants should incorporate security as an essential element of information
systems and networks.
8) Security management
Participants should adopt a comprehensive approach to security management.
9) Reassessment
Participants should review and reassess the security of information systems andnetworks, and make appropriate modifications to security policies, practices,
measures and procedures.
Proper implementation of computer security and computer legal science requires
the training and of large numbers of computer engineers and security professionals.
Even as technologies to protect against cybercrime are developed, cyber criminals aredeveloping ever more ingenious criminal methods. This is apparent from examples suchas computer viruses and hacking. In response to new criminal methods, even more
effective technological means must be developed as quickly as possible. The security ofelectronic commerce also requires the development of more powerful encryption
systems and electronic certification technologies.
It is even more important, however, that these technological responses be developedand implemented with suitable legal scholars. As a result, demand for legal scholars
who specialize in cyber law will increase dramatically. I imagine that the demands andnecessity on cyber law in both China and Japan are as yet not fully understood.
6 Conclusions
I have discussed cyber law, primarily from the perspective of cybercrime. Of course,cyber law deals with many issues other than cybercrime. Electronic commerce and the10Cyberlaw 2004

protection of intellectual property rights to electronic content are just two on the major
aspects of cyber law.
China is undergoing dramatic development, but I believe that there is a strong
awareness concerning the importance of cyber law. In the future, the study of cyber law
will take place on a global scale, and it is my sincere wish that people around the world
will be able to engage in electronic economic activities safely.
Thank you.

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