(Luận văn thạc sĩ) cybersecurity legal frameworks in vietnam and japan a comparative analysis

VIETNAM NATIONAL UNIVERSITY, HANOI VIETNAM JAPAN UNIVERSITY VU PHUONG LINH CYBERSECURITY LEGAL FRAMEWORKS IN VIETNAM AND JAPAN: A COMPARATIVE ANALYSIS MASTER’S THESIS MASTER OF PUBLIC POLICY Hanoi, 2019 i VIETNAM NATIONAL UNIVERSITY, HANOI VIETNAM JAPAN UNIVERSITY VU PHUONG LINH CYBERSECURITY LEGAL FRAMEWORKS IN VIETNAM AND JAPAN: A COMPARATIVE ANALYSIS MAJOR: PUBLIC POLICY CODE: PILOT RESEARCH SUPERVISORS: Associate Prof KOBAYASHI TAKAAKI Dr BUI HAI THIEM Hanoi, 2019 ii CONTENTS LIST OF FIGURE iii ACKNOWLEDGEMENTS iv ABBREVIATION .v CHAPTER 1: INTRODUCTION .1 1.1 Overview: 1.2 Why choose this topic? 1.3 Definitions: 1.4 Purpose of the research: 1.5 Research questions: .6 1.6 Methodology: .6 1.7 Literature review: 1.8 Limitation of the research: 10 CHAPTER 2: COMPARISION BETWEEN VIETNAMESE AND JAPANESE CYBERSECURITY LEGAL FRAMEWORKS 11 2.1 Japanese cybersecurity legal frameworks 11 2.1.1 Overview: 11 2.1.2 Characteristics of Japanese cybersecurity legal framework 12 2.2 Vietnamese cybersecurity legal framework 16 2.2.1 Overview: 16 2.2.2 Characteristics of Vietnamese cybersecurity legal framework 17 2.3 Similarities between Japanese and Vietnamese legal frameworks: 25 CHAPTER 3: EXPLANATION WHY THERE ARE DIFFERENCES BETWEEN TWO LEGAL FRAMEWORKS 27 3.1 Background of Japan: .27 i 3.1.1 Situation in Japan: 27 3.1.2 History of modern law of Japan 29 3.1.3 The theory of “Rule of Law” 29 3.2 Background of Vietnam: 33 3.2.1 Situation about cybersecurity in Vietnam: 33 3.2.2 History of modern law in Vietnam: 36 3.2.3 Theory of Socialist state ruled of law .37 CHAPTER 4: THE EFFECTS FROM LEGAL FRAMEWORKS 41 4.1 The effects from Japanese cybersecurity legal framework 41 4.2 The effects from Vietnamese cybersecurity legal framework .45 CHAPTER 5: RECOMMENDATIONS AND CONCLUSION 49 5.1 Recommendations: 49 5.2 Conclusion: 52 REFERRENCES .53 ii LIST OF FIGURE Figure 3.1: The percentage of total population and number of aging people over 70 years old in Japan (1990 – 2018) ……………………………………………… 28 Figure 4.1: The organization of agencies in charge of cybersecurity before and after the Basic Act on Cybersecurity……………… ………………………………….42 Figure 4.2: Current framework of cybersecurity policy in Japan………….…….43 Figure 4.3: Proactive measures taken to guard against cyberattacks……….… 45 Figure 4.4: Top risky online behaviors in Vietnam.…………………………… 47 Figure 4.5: Weakness of enterprises in Vietnam about information security ….48 Figure 5.1: Promoting cybersecurity through anime in Japan………………… 50 iii ACKNOWLEDGEMENTS From the bottom of my heart, I would like to thank my supervisors, Prof Kobayashi and Dr Thiem, for their wonderful supports Despite the fact that both of them are very busy, they always try to spend their time to help and give me valuable ideas While Prof Kobayashi has helped me with the methodology and made me understand my research topic better, Dr Thiem has pointed out for me which theories should I use in this thesis and give me advices to improve my paper Without their guidance, this thesis cannot be finished Next, I want to send my gratitude to Dr Thuy Anh and Dr Hoang Linh for giving me helpful comments and supporting me mentally at VJU I also want to give my special thanks to all teachers and everyone at Tsukuba University, especially the staffs at Global Initiative Office for their warmly welcome and helping me with my internship in Japan Through the internship, I had had the opportunities to collect documents for this thesis and had time to understand Japan better Moreover, I would love to thanks all the teachers at VJU and our program assistant, Mrs Ha, for helping me with the procedure related to this thesis and other works Last but not least, there are my family and my friends – all the people who has supported me from the beginning until the end of this thesis Thank you, for always stay by my side and encourage me iv ABBREVIATION AI: Artificial Intelligence APT: Asia-Pacific Telecommunity CII: Critical information infrastructure IoT: Internet of things NISC: National center of Incident readiness and Strategy for Cybersecurity NSC: National Security Council (Japan) VGCA: Vietnam Government Certification Authority VNISA: Vietnam Information Security Association v CHAPTER 1: INTRODUCTION 1.1 Overview: Nowadays, cybersecurity has become one of global issues since Internet has been the center of many crucial activities of human beings due to its convenience, including connecting with other people, online shopping, entertainment… and collecting information However, this environment is totally not safe as it seems: The more people using Internet, the more of their private information will be put onto it and this information can be used for cybercrime and malicious cyberattack, threatening human rights and properties of the owners The target could be any legal person, from individuals to groups, organizations, and even government agencies Cybercrime are also creating more heavy damages than ever before: According to the report from McAfee (2018) – One of worldwide security companies, the cost of cybercrime in 2016 was $4.2 trillion; In the case of WannaCry ransomware attack only in 2017, the losses could reach $4 billion with more than 100.000 groups over 150 countries had been affected (CBS News, 2017) Consider the number of cyberattacks which increases sharply in these decades, together with the awareness about the possible damages which cyberattack can create, many governments have made their moves by built cybersecurity legal framework, including Vietnam On June 12th 2018, Vietnamese Cybersecurity Law was officially passed with the approval of 423 Assembly members (86,86% of the total members of the National Assembly), and has been enforced from January 1st 2019 After being approved by the Assembly, there are many people who has raise their voice referring to the content of this law Many people worried that their basic human rights will be violated, including the freedom of speech, the right of access to information and their privacy since the law has mentioned about the responsibilities of Internet service providers and other enterprises provide their services on the Internet, which includes verify the identification of the users, provide the information regarding the users to the professional cybersecurity force of the Ministry of Public Security when they request, prevent and delete the information which is considered as illegal, including: Against the Vietnamese government, disturbing the public, national secrets A large number of organizations, groups and activists in Vietnam are also shown their concerns regarding how the Cybersecurity Law will affect their activities in the future, including UN Human Rights, American Chamber Commerce, and so on 1.2 Why choose this topic? a) Cyberspace is important to our current life: With the increasing of Internet users and activities which are happening on the cyberspace, it is clear that the cyberspace is becoming an inseparable part of our life According to Statista (2019), approximately 4.4 billion people were active Internet users as of April 2019, encompassing 58% of the global population In some countries such as UAE, Iceland, Norway, Qatar… the online usage rate is 99% (Statista, 2019) Being able to store and exchange a massive amount of information without limitation of time and space are also some of the strongest characteristics of cyberspace Over the last two years alone, 90 percent of the data in the world was generated and each day, there are 2.5 quintillion bytes of data created at our current pace (Marr B., 2018) Thanks to these amounts of information and the speed of information flows, human being can connect to each other, despite of distance and time, together with doing other activities such as online shopping, mobile banking, studying through online classes and so on Regarding the number of possibility activities are increasing, the barrier between cyberspace and real space is also become blur This also means that the attacks come from cyberspace can also create heavy damage in reality, with a larger scale and it is much harder to find out the culprit In order to prevent and keep the damage at minimum, governments have been put many efforts in improving cybersecurity and building a cybersecurity legal framework is one of them b) There is no proper research about current Vietnamese cybersecurity legal framework in general and comparative research about Vietnamese cybersecurity legal framework and Japanese cybersecurity legal framework in particular: While Vietnamese Cybersecurity Law was just passed last year and the concept of cybersecurity still new to the people, Japan is the first country in G7 (including France, Germany, the U.S, England, Canada, Italy and Japan) implemented “Basic Act on Cybersecurity” as a specific law for cybersecurity (Kazuyasu S and Masaya H., 2018) Therefore, Japan has had a long time in implementing cybersecurity law than other countries Moreover, Japan is also wellknown as a country with high technology, thus this country may have more experiences about dealing with cyberattack 1.3 Definitions: In this paper, some inportant key terms will be applied definitions as below: - Cybersecurity legal framework: Legal framework can be understood as a set of specialized legal regulations which manage same kind of social relations to ensure these relations can work in unity and maintain the social order Cybersecurity legal framework is a set of specialized legal regulations manage relations between all the stakeholders which are related to cybersecurity This can include the Constitution, Criminal Law, Cybersecurity Law and other legal documents - Cybersecurity: In order to point out what are the differences between two legal frameworks, this paper will use two definitons of cybersecurity which are mentioned in the main cybersecurity law of each system a) In the case of Japan, the definition of cybersecurity will be taken from the Basic Act on Cybersecurity, which is “the necessary measures that are needed to be taken to safely manage information, such as prevention against the leak, disappearance, or damage of information which is stored, sent, in transmission, or received by electronic, + Second, Cybersecurity Strategies are more effective than before: While Cybersecurity Strategy which was implemented before the act adopted by Information Security Policy Council and only has legal binding toward its members, Cybersecurity Strategy which was implemented after the act seems to be more effective by being adopted as a Cabinet Decision and even being reported to the National Parliament Furthermore, by applying authorities of mandatory reporting and formal recommendations, the Cybersecurity Strategic Headquarters may enforce the Strategy as well (Yamauchi T., 2017) + Finally, the awareness about cybersecurity is raising: Related to the awareness about cybersecurity in Japan, while there are many controversal opinions about this topic, it is clear that the awareness of Japanese Internet users is raising in general While still felling unease about the attitude of the Japanese government, Jeff Kingston (2016) has seen how active other entities in Japan react with cyberattacks For more details, the Japan Business Federation (Keidanren), created a task force involving 30 major companies encompassing the transport, finance, computer technology and communications sectors and made recommendations calling on the government to more in terms of sharing information about threats, training human resources and supporting technology development This Federation has also taken on the task of raising awareness in the business community that cybersecurity is an essential management task requiring significant investments to reduce associated risks NTT, a famous telecommunication company in Japan, is spearheading efforts to promote cybersecurity standards and information sharing across Asia, drawing on its experience in the United States and participation in Federal Communications Commission advisory groups (Jeff Kingston, 2016) About Japanese users, according to ESET Japan Cyber-Savviness Report 2016 which was done by ESET A Slovak enterprise in IT security, more than 70% respondents in Japan are knowledgeable about cybersecurity despite the fact that they did not receive any formal education about cybersecurity and they also restrain themselves from having 44 risky cyber behaviour Most of them (86% of respondents in total) know to immediately disconnect a breached device from the Internet and 71 percent not open or download attachments from unknown senders (ESET, 2016) However, ESET (2016) has also mentioned that there is a gap between their knowledge and their frequent measures to secure their information in this report For more details, less than 50% of respondents said that they apply preventive steps regularly 60 50 40 30 20 10 Running regular Keeping software virus scans up-to-date Using strong, complex passwords Setting passwords on personal devices Backing up important data regularly Using different passwords for different accounts Percentage in total Figure 4.3: Proactive measures taken to guard against cyberattacks Sources: Japan Cyber-Savviness Report 2016, ESET 4.2 The effects from Vietnamese cybersecurity legal framework a) Before implementing the Cybersecurity Law: Before the Cybersecurity Law was passed, the cybersecurity legal framework of Vietnam has been already criticized for a long time due to the restriction of access to information and other concerns about the right to expression through remove information and block several websites which are considered as opposed to the government and contain false information However, this policy is not negative as it seems since there are many cases that false information has cause great consequences toward the people In August 2018, a Facebook user posted an information that the Trung Son hydroelectric dam at Thanh Hoa Province was 45 broken After hearing this news, the local people were scared and went to the higher place to escape the flood Later, the Steering Committee for Natural Disaster Prevention of Thanh Hoa Province declared that this news was fake, and the flood is just water release from the dam due to heavy rain in long time (Tuan M., 2018) Since a major of Vietnamese people believes the news on social network without reconfirm it, false information become a big issue and if the government does not intervene quickly, the social order may break from that This also shows another problem that not many Vietnamese people aware the consequences of their action, which a part of it came from the fact that there was no specific law about managing online activities at that time Outside of what has been mention above referring to the situation in Vietnam in previous chapters and above, the awareness of Vietnamese people referring to cybersecurity is also one of the biggest problems As reported by an emergency warning from Vietnam computer emergency response team (VNCERT) on December 27, 2017, about 1,4 billion of email accounts and passwords has been leaked all over the world and 437.664 accounts are from Vietnam, with 930 accounts belongs to people who works in the government (Ha T., 2017) ESET (2015) also pointed out this issue in the Vietnam Cyber-Savviness Report 2015 and emphasized that Vietnamese users have low cybersecurity awareness and not take proper preventive measures Less than 30 percent of respondents recognized the serious risks from common threats such as unsecured application, spam emails and banner advertisements, and more than 40% in total of respondents have misconception about common cybersecurity issues, especially (1) connect to free public Wi-Fi is safe, (2) believe PC is more likely to be hacked than mobile device and (3) using personal details which are easy to remember to make their password This leads to many risky online behaviors and make a major of Vietnamese users become easy targets for cyberattacks and cybercrime 46 Figure 4.4: Top risky online behaviors in Vietnam Sources: Vietnam Cyber-Savviness Report 2015, ESET Not only Vietnamese individuals have low awareness about cybersecurity, many companies in Vietnam are also putting their business into risk In the Evaluation of Information Security Index Survey 2018, Vietnam Information Security Association (VNISA) showed that while major of enterprises care about principles of implementing information security and human resources for cybersecurity, mot many companies interest regarding knowing legal framework and policies about information security and investing on it 47 Figure 4.5: Weakness of enterprises in Vietnam about information security Source: Evaluation of Information Security Index Survey 2018 - VNISA b) After implementing the Cybersecurity Law: Since the Cybersecurity Law has just been enforced on January 1, 2019, the effects of this law not show much in other aspects According to the criminal police department of Hanoi, the number of victims of online scams is still increasing (TTXVN, 2019), methods of internet frauds become more complicated and there is no signal that Vietnamese people will restrain their risky behaviors on cyberspace soon However, the awareness of people referring to posting false news and any information which is related to the government has been increased Nowadays, people on social networks - especially Facebook or Zalo – are being more careful about what they should post, or else they would face punishment come from the government 48 CHAPTER 5: RECOMMENDATIONS AND CONCLUSION Base on the current situation in each country and all the analyses above, this chapter will come up with some recommendations for improving the legal documents and policies of both countries 5.1 Recommendations: a) Vietnam: In consideration of the political institution in Vietnam and the current situation, this paper comes up with recommendations in legal aspects and policies as below: - Detailed standards for recognizing illegal information are crucial: Since the barrier between opposing the government and pointing out the wrongdoings of the government is blur, having detailed standards regarding illegal information is important in order to avoid abuse of power and encourage people to voice their opinions without afraid the punishments from the government These standards should be drafted base on the Constitution and other laws with the consideration of human rights in mind, and it must be written as clear as possible - Precise procedure for retrieving users’ information is needed: Outside of emergency circumstances, how users’ information will be retrieved by the professional cybersecurity force is also need to be regulated clearly in the law - Raising more awareness about cybersecurity: + Knowledge about cybersecurity should be a compulsory part in education: While Computer Science is already a subject in Vietnamese education program, this course is mostly focus on the structure of a computer and how to 49 using it To improve the knowledge about cybersecurity, not only this must be a compulsory part of the curriculum but other methods should also be put into consideration In several high-ranking universities in Japan such as Kyoto University or Tsukuba University, students must learn brief lessons about cybersecurity before using library or using the exclusive Wi-Fi of the university + Spread the messenge about cybersecurity by using soft power: Beside of other common methods such as through education and competition, spread the idea of cybersecurity through social media is also crucial when a major of Vietnamese Internet users is using social networks Another way is promoting cultural products which are related to cybersecurity such as films, comic books, animations… Figure 5.1: Promoting cybersecurity through anime in Japan Sources: Ryo Fuzuki, NISC 50 b) Japan: - Raising more awareness about cybersecurity in governmental bodies: Seeing that the cybersecurity in Japan mainly focus on the role of the governmental bodies, it is essential for governmental officers to understand about cybersecurity Therefore, beside of training current officers, the employment examination of Japanese government should have a test referring to knowledge of computer science in general and information security in particular - The Japanese government should be more active in counterattack and finding culprit of cyberattacks: Beside enhancing security of CII and other important systems, counterattack and tracking the culprit of cyberattacks is also good methods to continuing to improve cybersecurity Recently, the Ministry of Defense in Japan has planed to create and maintain cyber-weapons in the form of malware to counterattack with attackers who targets governmental bodies (Catalin C., 2019) While this malware is only use for the purpose of defense, it is also the first step for Japan to be more proactive in secure cybersecurity - Encouraging people to study computer sciences and take IT jobs: Considering Japan is an aging society and the conditions of IT careers in this country is not good enough to get interest of Japanese people, there is a shortage of IT technicians all over Japan According to the Ministry of Economy, Trade and Industry, the current gap between available professionals and opportunities is 132,060 IT professionals, and it will further increase to 193,010 in 2020 when the Tokyo Summer Olympic and Paralympic Games will be held in Japan About half of end-user companies believe they are deficient in IT security employees, and only 26 percent of them think they have enough talent in these roles (Mihoko M., 2016) This shortage of IT human resources is also happened in governmental bodies Because of that, together with recruiting foreign employees, Japan will need more 51 policies about improving the working conditions of IT technicians and encourage people to take majors related to computer science 5.2 Conclusion: While many people believe that because Japan is famous as a high-technology country and also the first country in G7 implementing cybersecurity law, Japan must be one of the best countries in cybersecurity, this paper has shown an opposite of that belief Same as the case of Vietnam, while the Vietnamese cybersecurity legal framework is criticized heavily by other countries and it is undeniable that there is limitation of freedom of expression and access to information, it is still having some values which is suitable in the context of Vietnam By analyzing main legal documents referring to cybersecurity, study about situation, political institution and the legal theory which laying under the legal structure of each country, this paper has pointed out several problems in each systems and come up with recommendations 52 REFERRENCES English Catalin C (2019), Japanese government to create and maintain defensive 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Party Since cybersecurity has an important role in maintaining the power of Vietnamese Communist Party and cybersecurity legal framework is part of the entire Vietnamese legal structure, both Cybersecurity