The recent raid on the offices of Next magazine by prosecutors and investigators was reminiscent of an earlier search of the China Times Express offices in October 2000. Both cases are related to the alleged embezzlement by former National Security Bureau (NSB, 國安局) cashier Liu Kuan-chun (劉冠軍).
There are other similarities as well -- the publication of allegedly classified documents, prosecutors searching newsrooms, media objections to the government's clampdown on press freedom and the Ministry of Justice's claim that everything had been done in accordance with the due process of law. The raids raise the question of where the demarcation lines are between national security, criminal investigation and press freedom?
After the China Times Express incident, the media rose en masse to lambast prosecutors, while the Legislative Yuan passed amendments to curtail the most powerful prosecutorial weapon -- ?the right to search. Under the new Criminal Procedure Law (刑事訴訟法) which took effect on July 1, 2001, pro-secutors must apply for search warrants from the court -- except in emergencies. The Ministry of Justice has claimed that every step taken in the raids on Next was legal because the raids were conducted with a search warrant issued by the court.
Minister of Justice Chen Ding-nan (陳定南) has said that "the news media is not a forbidden area for searches" and "the ROC Constitution does not protect the Legislative Yuan from being searched, let alone newspaper offices." Chen's comments stake out the government's position on conflicts between press freedom and criminal investigation. But is this an appropriate stance?
The press, the fourth estate, is safeguarded by the ROC Constitution. Article 11 of the Constitution stipulates, "The people shall have freedom of speech, teaching, writing and publication." The Council of Grand Justices' constitutional interpretation No. 364 states that press freedom is guaranteed by Article 11.
Does that mean newspaper offices cannot be searched? Press freedom is certainly important, but the rights of law enforcement agencies -- to collect evidence as part of a criminal investigation -- are equally important. There is no reason to give the news media "extraterritoriality" and hence immunity from searches.
Allowing the government to raid news organizations at will, however, would very likely stifle the flow of information, making people hesitate to provide information to the media and thus affecting media sources. What needs to be weighed is how to balance the interests of law enforcement and press freedom.
There have been cases in the US in which police armed with search warrants have scoured newspaper offices. The newspapers in question accused the government of infringing upon their freedom of speech. The US Supreme Court ruled, in Zurcher vs. Stanford Daily in 1978, that the news media may be subjected to search only in the following circumstances: Law enforcement has probable cause to believe that evidence will be found, the search warrants must specifically describe the places to be searched and the things to be seized and the search and seizure must be reasonable.
The court verdict stressed that the ruling had been made on the basis of constitutional interpretations, but that legislative or administrative agencies may establish stricter regulations to protect press freedom or prevent the abuse of police power.
The US Congress enacted the Privacy Protection Act in 1980 to regulate searches of media-related organizations. The act divides documents held by members of the media into two categories: notes, drafts, press releases and records written by reporters as part of their news-gathering efforts and documents provided by informants.
The former cannot be searched and seized except when "journalists themselves have committed a crime" or when "materials must be immediately seized to prevent death or serious bodily injury." Those exceptions also apply in the case of documents provided by informants, but the government must first demand that the news media present the materials. Search and confiscation must be conducted only when the media refuses to cooperate or the government's demand might lead to the destruction, modification or concealment of the materials.
Although US law permits search and seizure of media personnel and premises, there are special restrictions regarding the confiscation of books and magazines. The US Supreme Court ruled that the government can only seize a limited number of copies of books or magazines in raids.
Since the content of each issue of a publication is identical, the seizure of one copy is adequate to preserve evidence for criminal investigation. If the government intends to seize a large number of copies, a court hearing must be held so both sides may argue their points of view, in order to protect the public's right to know.
The China Times Express case in 2000 merely resulted in the placing of limits on prosecutors' right to search, but there has been no effort to clarify the statutes regarding the balance between press freedom and national security, or the powers of a criminal investigation in relation to conflicts between the two. Despite repeated urgings from scholars that further laws be enacted, the government seems content to leave things as they are.
The justice minister's remark that the Constitution does not protect the legislature from being searched, let alone newspaper offices, is undoubtedly correct. But is it good policy? Will prosecutor searches have the stifling effect of impeding media scrutiny of the government and affecting the public's right to know? Can we enact clear statutes to draw the line between criminal investigation and press freedom?
The most controversial aspect of the Next case is that more than 100,000 copies of the magazine's latest issue were confiscated. Was the seizure conducted because the government feared people would learn what the publication contained, or was it so that the maga-zines could become evidence at a future trial? If the goal was to preserve evidence, 10 or 100 copies -- ?or even 1,000 or 10,000 copies -- ?would have sufficed. Was there really any need to seize over 100,000 copies?
Such a large-scale confiscation not only seems to have exceeded the reasonable bounds of search and seizure, but also seriously violating the public's property rights and impacted freedom of speech. If the government's aim was to prevent the information in the magazine from becoming public, it should have applied for a court injunction rather than sending prosecutors out on raids.
There are reports that a court had turned down the NSB's application for an injunction, which means that the judges had determined that the bureau had no right to try to block the material being made public. But the government went ahead and confiscated two truckloads of magazines under the guise of a criminal investigation. Was the act justi-fied? Can the government really stop the flow of information in a modern society?
The Liu case remains open. This will not be the last conflict between press freedom and a criminal investigation. History has a habit of repeating itself. Will there be further searches of the media? The government must learn how to resolve conflicts, starting from a legal perspective by providing regulation and protection.
Wang Jaw-perng is an associate professor of law at National Taiwan University.
Translated by Jackie Lin
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