leads to abuse
By Lin Feng-jeng 林峯正
Now that President Ma Ying-jeou (馬英九) and Legislative Speaker Wang Jin-pyng
(王金平) seem to have, for appearances’ sake at least, buried the hatchet, the
fervor of the press coverage and speculation over the political turmoil that
started in September has gradually abated. As a result, nobody has accepted
responsibility for the suspected alleged lobbying and illegal wiretapping that
caused the turmoil in the first place, and the systemic shortfalls that allowed
these matters to happen are no longer being pursued.
A number of amended drafts for the Communication Security and Surveillance Act
(通訊保障及監察法) have emerged in the legislature, but unless calls for reform are made
louder, there is little chance of anything being done. In short, the upheavals
of the last two months will almost certainly come to naught.
As there is little room here to discuss national security surveillance, we shall
limit ourselves to the issue of wiretapping of individuals. There were more than
15,000 applications to the courts for a warrant for wiretapping by prosecutors
on average over the past five years. When that figure is compared with official
statistics in the US and Japan, it means that 50 times more Taiwanese were
monitored than US citizens in the US, and almost 2,000 times more than Japanese
after differences in population sizes have been adjusted.
This may sound surprising, but the way the US and Japan carry out wiretapping is
very different to how it is done in this country.
In those countries, it is not permissible, after the line has been tapped, to
record the entire contents of telephone calls. The people conducting the
surveillance can only keep records of those parts of the conversation that are
relevant to the investigation at hand. This requirement is in place to ensure
that the privacy of innocent people is not compromised.
In Japan, there is a strict requirement to the effect that there must be a third
party present at all times when such surveillance is being conducted, again to
ensure that the information of individuals not being investigated is not
recorded without checks in place.
Most importantly, the investigators have to go to the exchange at the premises
of the telecommunications provider, in possession of a warrant issued and signed
by a judge, to get a line tapped. This is quite unlike the situation in Taiwan,
where the Ministry of Justice’s Investigation Bureau, or the Criminal
Investigation Bureau, both of which have their own telecommunications
surveillance centers, conduct the kind of blanket surveillance — by which I mean
the entire content is recorded — that you will not see in any other country in
the world governed by the rule of law.
Under this system, it is quite possible to monitor the communications of the
entire public, at little cost and with absolutely no limits, simply by allowing
the equipment to record everything unmanned. However, as this activity occurs on
site, using the facilities owned and controlled by the two bureaus, there is
virtually no way the process itself can be monitored. If surveillance is this
convenient, it is only natural that there would be claims of indiscriminate
Incredibly, the ability to have these unique surveillance centers is stipulated
in the Communication Security and Surveillance Act. Also, telecommunications
providers are required by law to install direct lines to the surveillance
centers, meaning that investigators are able to tap anyone’s telephone calls,
SMS messages and e-mails, as well as any content sent over a 3G network.
Clearly, then, the constitutionally guaranteed freedom of privacy of personal
information is a fallacy.
A decade ago, to guarantee human rights, prosecutors’ powers of investigation
became subject to the discretion of the judge. Naturally, at the time, the vast
majority of academics were in favor of these changes, while prosecutors and the
police raised vociferous objections, on the grounds that these changes would
deny them the initiative in investigations, and would be disastrous for the
investigation of crimes.
Now, 10 years on, the original indignant objections have disappeared, and
investigators have become used to the idea that they have to seek a judge’s
permission. This shows that the move to protect human rights was not the death
knell for public security that some had suggested it would be.
We have seen other examples of reform before. It has been the same for reform
requiring prosecutors to seek a judge’s agreement before detaining a suspect. We
have also seen the same thing with the introduction of requirements to record
the entire process of the interrogation of suspects, to prevent the incidence of
Reform would be quite simple. All it would require would be the abolition of
these telecommunications surveillance centers, putting us back to being like
other countries governed by the rule of law, and to take away prosecutors’
ability to monitor telecommunications at will.
Of course, this might cause some inconvenience. Yet at the same time, it would
ensure the constitutionally guaranteed freedom of privacy of personal
Lin Feng-jeng is a lawyer and executive director of the Judicial Reform
Translated by Paul Cooper