Independent Taipei mayoral candidate Ko Wen-je’s (柯文哲) campaign team said that their office’s telephones have been wiretapped. They are calling it a Taiwanese version of the Watergate scandal.
Chinese Nationalist Party (KMT) Taipei mayoral candidate Sean Lien’s (連勝文) campaign team said that the accusations were just as false as the reports in 2005 that Taipei restaurants purchased rice and other food used to honor the dead from funeral parlors to resell to unwitting customers.
While police are investigating the claims made by Ko’s office, it is questionable whether the truth about what happened will ever come out. This is one of the main problems with enforcing current legislation on wiretapping.
If investigators want to employ wiretapping, Article 5 of the Communication Security and Surveillance Act (通訊保障及監察法) stipulates that not only are there restrictions to the extent to which phone-tapping can be applied, but investigators must first receive court permission. Even in an urgent situation, for example involving explosives or a kidnapping for ransom, which do not allow time to obtain court permission, Article 6 of the act demands that an application be filed with the court within 24 hours. Moreover, even when permission is obtained in this manner, Article 13 of the law bans the installation of wiretapping, sound or video recording or other equipment for supervisory purposes in residential premises to prevent invasions of privacy.
This means that if investigative or intelligence agencies have wiretapped Ko’s campaign office, those who executed the wiretapping and those who assisted them can be sentenced to a prison term of between six months and five years, as stipulated in Article 24 of the act.
Article 18 of the act stipulates that all material and all evidence derived from the material thus obtained will be invalid and it may not be used in any investigative, judicial or other procedure. The problem is that at a time when wiretapping technology changes from one day to the next, even such strict regulations make it difficult to completely eliminate illegal wiretapping activities by law enforcement agencies. Furthermore, wiretapping is by nature a secretive investigative method, so unless someone on the inside leaks information to reporters — as in the Watergate scandal — it will be very difficult to expose such cases.
If the entity behind the wiretapping is a private citizen, they might be guilty of “unprovoked wiretapping,” but this offense is pursued only upon a direct complaint by the victim. The legally stipulated sentence for it is up to three years in prison. Furthermore, trying to use fingerprints or DNA to identify an offender is like looking for a needle in the proverbial haystack.
In addition, even if police were to find the person who did it, it is not certain that it was illegal, because the defense might be that they did so to expose illegal activities or to protect themselves. If that is the case, one cannot be sure that the “unprovoked” requirement can be established.
Also, if the person doing the wiretapping were one of the parties to the recorded event, they may be able to escape legal liability on the grounds that their privacy was not being violated.
Regulations on wiretapping, elimination of evidence and sentencing are aimed at the state and not at private citizens. This is why, if it is a private citizen who has engaged in wiretapping, the sentence will not be heavy. Also, since the law is not clear, whether the obtained information can be used as evidence during investigation and trial must be determined by judges in each individual case, based on the principle of proportionality, resulting in wanton and arbitrary application of the law.
One of the issues that must be considered when dealing with the confusion surrounding the alleged wiretapping of Ko’s campaign office is whether all these legal shortcomings will lead law enforcement agencies to rely on the help of private citizens to avoid the strict regulations of the Communication Security and Surveillance Act and thus cause fears of privacy violations among the public.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department and executive director of the Taiwan Forever Association (台灣永社).
Translated by Perry Svensson
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