Recently, Democratic Progressive Party (DPP) Policy Research and Coordinating Committee director Wang Yi-chuan (王義川) said on a political talk show that mobile phone signals and geolocation could be used to analyze the age groups of people who took part in the protests against proposed legislative reforms last month.
Wang said that about 60 percent of the protesters were between 20 and 40 years old and were different from protesters who gathered outside DPP headquarters to protest the party on May 19 and those who attended DPP rallies on the evening before the Jan. 13 presidential and legislative elections. His remarks have caused concerns about state surveillance.
Article 3-1 of the Communication Security and Surveillance Act (通訊保障及監察法) says that a private mobile phone user’s name, identification number, telephone number, address, time of communication, length of use, service type, mailbox and location information all fall within the scope of safeguarding the freedom of private communications.
Anyone who wants to access such information from a telecom must follow a legally stipulated procedure.
Article 11-1, Paragraph 1 says: “When a prosecutor investigates an offense punishable by term imprisonment of more than three years, if there are facts leading to the belief that communications records and information of the communications user are necessary and relevant to the investigation of the case, unless in the situation of an emergency for which prior application is not possible, a written application should be filed with the court for an access warrant.”
Similarly, Paragraph 2 of the same article stipulates: “When a judicial police officer investigates the situation of offense by a criminal suspect and collects evidence, if the officer deems it necessary to access the communications records, following the approval by the prosecutor, an application may be filed with the court of jurisdiction for issuance of an access warrant.”
A national intelligence agency, in order to collect intelligence on hostile foreign forces, may, in accordance with Article 11-1, Paragraph 8 of the act, ask a telecommunications or postal organization for access to communication records and users’ personal information.
Although the conditions in such a case are relatively relaxed in that the agency does not need to obtain permission from a court in advance, they must still clearly specify the relevant laws and regulations, type of surveillance, grounds for the case, enforcement agency and so on, in readiness for any ensuing judicial investigation.
As for civil servants, any mobile phone user’s personal information that they obtain in accordance with the Communication Security and Surveillance Act must not be used for anything other than the stated purpose. If they leak this information, Article 27, Paragraph 1 says that they may be sentenced to up to three years in prison.
As for people other than civil servants who leak such information, Article 28 says that they may be sentenced to up to two years in prison.
Consequently, any telecom that, in the absence of a court-issued access warrant or an application from an intelligence agency, provide such information to a public or private organization, the information provided must be de-identified, ie. anonymized.
Article 25 of the act says that anyone who contravenes this regulation may be sentenced to up to three years’ imprisonment, or up to five years if they do so for profit.
As for ordinary people who receive such information from a telecom by either legal or illegal means and proceed to leak it, then besides contravening the Communication Security and Surveillance Act, they will also have committed the offense of leaking personal information, which Article 41, Paragraph 1 of the Personal Data Protection Act (個人資訊保護法) stipulates is punishable by up to five years of imprisonment.
With regard to Wang’s statement on the TV show that, from the information he had received, it was possible to find out the age and sex distribution of protesters and even whether the crowds attending events on different days were the same people, all such information would be encroaching on the core domain of privacy and freedom of communication, and such a matter is not to be taken lightly.
Prosecutors should investigate and clarify the source and legality of the information that Wang talked about, to determine whether the things he said were true or he was just talking off the top of his head.
Prosecutors might not indict Wang, on the grounds that his words were based on crowd movement statistics that do not involve personal data and personal observation.
However, his statements could still be in contravention of Article 63, Paragraph 5 of the Social Order Maintenance Act Act (社會秩序維護法), which forbids “spreading rumors in a way that is sufficient to undermine public order and peace.”
The TV station that broadcast the program in which Wang said these things may have infringed Article 27, Paragraph 3, Subparagraph 4 of the Satellite Broadcasting Act (衛星電視廣播法) in that “the produced and broadcasted news violates the principle of fact verification and caused damage to public interest.”
However, the principles of verification with regard to truth, objectivity and fairness are uncertain legal concepts, so the decision of whether to penalize the TV station would depend on the internal will of the authority, which is the National Communications Commission.
Wu Ching-chin is a professor and director of Aletheia University’s Department of Law.
Translated by Julian Clegg
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