Easy surveillance leads to abuse

By Lin Feng-jeng 林峯正  / 

Tue, Nov 05, 2013 - Page 8

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 surveillance.

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 torture.

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 information.

Lin Feng-jeng is a lawyer and executive director of the Judicial Reform Foundation.

Translated by Paul Cooper