During his 2008 election campaign, President Ma Ying-jeou (馬英九) promised to put an end to illegal telephone wiretaps during his term in office. It was obvious that this pledge would become a judicial joke, as proven by Ma’s actions since the beginning of the “September strife.” Given Ma’s authoritarian leadership style, the existing system defined by the terms of the Communication Security and Surveillance Act (通訊保障及監察法) is a hotbed for wanton unlawful surveillance, and it is pushing Ma’s judicial joke toward its punch line.
A variety of numbers are being bandied about as to how many telephone lines have been wiretapped.
Confusion comes from the fact the government never instituted a system to submit annual reports on wiretapping to the legislature. Transparency would provide a factual basis for public debate, but as things stand we only have scant figures provided in the annual report of judicial statistics.
Taking the US as an example, the Administrative Office of the US Courts is required to submit a report on wiretaps to Congress each year.
The report is required to provide details on the number of cases in which investigators used wiretaps, the offenses being investigated, the devices used by investigators, the duration of surveillance, the proportion of intercepts that were extended, surveillance methods, the places under surveillance, the costs involved and the rates of indictment and conviction, among other things.
In contrast, Taiwan just witnessed a ridiculous situation where the Judicial Yuan deleted data about national security surveillance at the behest of the National Security Bureau, after it had already published the material on the Internet.
If the Executive Yuan and the Judicial Yuan are serious about their pledge to set up a collaborative platform for the purpose of conducting a thorough review of existing surveillance systems, they will need to take more active measures.
The authorities claim that nothing illegal took place when prosecutors at the Special Investigation Division (SID) applied for and obtained a warrant to tap a number with the prefix 0972 that turned out to be the Legislative Yuan’s switchboard, but this claim is very unconvincing.
If the authorities do not change their tack, it will only serve to show what arrogant disregard they have for the penalties and state compensation regulations set out in Article 22 and succeeding articles of the Communication Security and Surveillance Act, as well as their propensity for sowing confusion and concealing wrongdoings. All of this is typical of authoritarian rulers’ mentality.
Whereas Article 14, Paragraph 2 of the act defines telecommunications companies’ duty to assist in implementing communications surveillance, the Enforcement Rules of the Communication Security and Surveillance Act (通訊保障及監察法施行細則) establishes a control mechanism that could be accused of granting authority that goes beyond the terms of the parent law. Article 26 in the enforcement rules states that telecommunication and postal businesses should incorporate procedures necessary for cooperating with communications surveillance in their systems’ software and hardware equipment, and that, when necessary, they should provide workspace, power and related interface connection equipment, as well as other items defined by the enforcement rules.
In addition to this all-
encompassing rule, Article 21 of the enforcement rules says that telecommunication companies should cooperate with surveillance by connecting their lines to the surveillance center of the government department that installs a phone wiretap via a dedicated line. It also says that the National Communications Commission has the power of adjudication over requests for telecommunication companies to cooperate with surveillance.
Surveillance is supposed to be done on a case-by-case basis, but how are telecommunication companies supposed to perform their basic gatekeeping function of protecting their customers’ privacy under a setup that allows any communications surveillance center to key in a surveillance command via a permanent dedicated line at any time?
If Chunghwa Telecom Co had really examined the content of the wiretap warrant for the 0972 number before it was implemented, we would not have found ourselves in the midst of a phone-tapping scandal. If the nature of the act is such that telecommunication companies operating under its strictures do not engage in even such a basic legitimate procedure, does this not mean that the government and telecommunication providers are cooperating in efforts to stamp out privacy?
When prosecutors, police or other investigative agencies look into ordinary criminal activities that are not listed in the act, how do these agencies obtain information about people’s telephone, Internet and other communications from public and private institutions that are so willing to cooperate?
If the government really wants to put an end to unlawful surveillance, then apart from amending the law to institute a system that requires judges to approve and issue surveillance warrants, should it not first frankly explain whether the practices of prosecutors, police and investigative agencies hitherto have conformed to the use of writs, which is a basic requirement in democratic countries? For example, if the government obtains data about people’s online activities from Google or Facebook, what is the legal basis for authorizing such an action, and what procedures exist for controlling it?
The Ministry of Justice’s report on its investigation into the recent controversial telephone wiretapping incidents is not just a shoddy piece of work, but also predictably unconvincing.
In conclusion, who should be afraid of unlawful communications surveillance under the existing framework? Rather than the politicians who keep blaming and shifting responsibility onto one another based on their respective political interests, the ones with the most to worry about are probably innocent members of the public whose rights could be trampled upon anytime and anywhere.
Liu Ching-yi is a professor at National Taiwan University’s Graduate Institute of National Development.
Translated by Julian Clegg