Amendments made to the Communication Security and Surveillance Act (通訊保障及監察法) in January, that were supposed to address abuses of power relating to wire-tapping and surveillance, came into effect on June 29.
The changes were not welcomed by prosecutors or police, who believed they would impede criminal investigations, not only because of new restrictions on what data could be recorded, but also because surveillance would require a judge’s approval. Whether these changes will result in difficulties is worth looking into.
Recording the details of communications between people generally refers to information such as phone numbers and dates and times of calls. The original version of the act did not address the documenting of the content of communications. Not only was it necessary to secure the consent of the individuals concerned, but Article 7, Paragraph 2 of the National Communications Commission’s Telecommunications Act (電信法) also states that the competent authorities are to issue “rules governing operational procedures for telecommunications enterprises to handle inquiries for communications records and users’ data.”
The commission itself devised these regulations, Article 3, Paragraph 1 of which simply states that the authorities need only take into account how necessary, reasonable and proportionate it is to obtain information through surveillance during an investigation.
Not only is the language used unclear, it offers little illumination on objectives, thresholds or conditions that might apply. Regulations such as this are not only of dubious legal validity, there is no need for them to exist at all. If the judiciary, prosecutors, intelligence services or security authorities want access to an individual’s private and confidential communications, they just need to apply for permission. They are essentially being given carte blanche.
With these latest amendments, Article 11.1 has been added to the law, aimed at the documentation of data not including the actual content of communications. Unless the investigation concerns criminal offenses — such as robbery, fraud, extortion, kidnapping for ransom, human trafficking, drug offenses and organized crime — punishable by at least 10 years in prison, in which case prosecutors have the right to obtain the data, they can only apply for a warrant from a judge for cases involving a criminal offense punishable by more than three years.
The point of this stipulation, dependent upon how serious a crime is deemed to be in the law, escapes me. Further, according to the article, intelligence agencies are not constrained by these regulations.
There are, then, a number of organizations, such as the Ministry of Justice’s Investigation Bureau, which have the dual function of data collection and crime investigation that, purely for the sake of convenience, can access people’s communications records without having to abide by the stringent regulations.
In addition, the Communication Security and Surveillance Act is aimed at people suspected of involvement in criminal cases. How about non-criminal investigations, such as missing persons cases? Should these also be subjected to the stringent procedures of the Communication Security and Surveillance Act, or should the Telecommunications Act, with its more relaxed stipulations, apply instead?
This will create all kinds of headaches, and shows that our lawmakers have not really thought these amendments through properly. Not only that, they are the result of political compromise. We have no way of knowing whether they will actually protect human rights, but the difficulties in implementing them may well mean that pretty soon they will have to be revised again.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.
Translated by Paul Cooper
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