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EDITORIAL: Clearing
up the bugging mess
Following the alleged abuse of wiretapping powers by the Supreme Prosecutors’
Office Special Investigation Division (SID), Taiwanese have raised concerns over
their constitutionally guaranteed right to privacy in communications.
There have been several irregularities in how the SID applied for and conducted
its wiretaps, including seemingly unchecked and arbitrary eavesdropping, and
procedural irregularities, such as applying for a court order to wiretap one
person while actually investigating another. The person subjected to monitoring
should be informed after the investigation is concluded for wiretaps to be
compliant with the law.
Perhaps most distressing was that the SID ended up eavesdropping on members of
the legislature and failed to verify the identity of the individual or
institution whose telephone number it was monitoring before adding it to the
list of numbers to be bugged.
The judge who approved the warrant criticized the SID for submitting erroneous
information, the SID accused the Investigation Bureau (IB) of fouling up the
bugging, resulting in blank recordings, and the IB insisted it had recorded
conversations from the number that the SID had provided. The SID said it had
been unaware the disks it received were blank because it did not listen to them
immediately.
During a press conference called after questions about wiretapping were first
raised, the SID said that it had failed to verify the number it intended to bug
to confirm it was the correct one.
Although, the division is permitted to conduct wiretaps, there is a considerable
gap between the stipulations of the Communication Security and Surveillance Act
(通訊保障及監察法) and the way it implements them.
From January to August, the SID applied for 136 communications monitoring
warrants, of which the courts rejected only four. The Council of Grand Justices’
Interpretation No. 631 intended for the courts to systematically oversee
wiretapping practices, but these numbers indicate that they are little more than
a rubber stamp for the SID.
The Surveillance Act places limits on communications monitoring. There are
provisions to keep prosecutors in line, as well as for internal administrative
supervision. Unfortunately, these provisions are not applied as rigorously as
they should be.
The system needs to be tightened to avoid similar mistakes. While it is not easy
for judges to know a case will develop once they have approved the warrants,
they must still be held accountable to a certain degree. Each wiretapping
application needs to be more closely examined to ensure that the body applying
for the warrant is diligent enough.
The judges need to be absolutely sure of the reason for the application.
Communications monitoring is an imposition on people’s privacy and judges should
apply the principle of proportionality when deciding whether to approve the
warrant.
The applications should clearly identify who is to be monitored and the reason
for the monitoring, which needs to be double-checked.
The monitoring process itself should be monitored to make sure the law is
observed and to see whether other targets become necessary, which will determine
the validity of further investigation.
It should not be assumed that a single warrant gives the monitoring body carte
blanche. If, during the monitoring process, it is discovered that the subject of
wiretapping is no longer of interest or was the wrong person in the first place,
surveillance should be immediately discontinued.
The current situation suggests that there are serious issues within the system
that need to be addressed and that the Surveillance Act is not being implemented
correctly. If the judiciary is to regain its dignity, it needs to start by
clearing this mess up.
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