Amending the Law to Prevent Unconstitutional Wiretapping ~ JRF Releases Draft Amendments to the Communication Security and Surveillance Act

On October 28 this year, our Foundation held a press conference titled "Idiot! The Key Lies in the Telecom Rooms! – Abolishing the Telecommunications Surveillance Center is the Only Way to Stop Abusive Wiretapping," exposing how certain provisions of the current Communication Security and Surveillance Act severely violate the fundamental rights to freedom of communication and privacy guaranteed by the Constitution. Following discussions with experts and scholars, our Foundation has officially published the latest draft version (hereinafter referred to as "this Draft") on our official website. A summary of the key amendments is provided below for the reference of all sectors of society and the legislative branch:

1. Removal of the Unconstitutional "Establishing Authority"

   The "establishing authorities" referred to in Article 11, Paragraph 1 of the current Act—namely the two criminal telecommunications surveillance centers under the National Police Agency of the Ministry of the Interior and the Investigation Bureau of the Ministry of Justice—are not only unconstitutional in their establishment, but also difficult to subject to effective external oversight. To completely eradicate unconstitutional telecommunications surveillance, their removal is necessary; therefore, this Draft deletes these provisions. In the future, the execution of wiretaps should be carried out by presenting a surveillance warrant at the facilities of private telecommunications operators rather than being conducted secretly within government-controlled telecommunications surveillance centers. This will safeguard people's right to privacy and effectively constrain the exercise of investigative powers.

2. Prohibition of the Practice of Blanket Prior Recording Followed by Subsequent Listening

   The current operational practice of wiretapping—which uniformly involves recording everything first and listening to the recordings afterward—severely violates the freedom of private communication guaranteed by Article 12 of the Constitution and the principle of least infringement under Article 2 of this Act. Permitting such low-cost wiretapping methods is one of the primary reasons for the proliferation of abusive surveillance. Consequently, Paragraph 3 is added to Article 13 of this Draft to explicitly prohibit this unconstitutional method of executing wiretaps.

3. Establishment of a Third-Party Oversight and Control Mechanism: the "Telecommunications Surveillance Oversight Committee"

   Our current legal framework for telecommunications surveillance lacks a comprehensive external ex-post oversight mechanism. However, because telecommunications surveillance is executed in secret, there must be a third-party monitoring and control mechanism to ensure it is not abused. Therefore, Article 32-1 is added to this Draft to establish a "Telecommunications Surveillance Oversight Committee" within the legislative branch, which will handle consultation and oversight matters regarding the legal framework and execution of telecommunications surveillance, and bear the obligation of reporting to the Legislative Yuan.

4. Data Obtained through Unlawful Telecommunications Surveillance Shall Not Be Admissible as Evidence

   In accordance with Article 18, Paragraph 3 of this Draft, any wiretapping data or derivative evidence obtained unlawfully shall not be admissible in judicial proceedings, echoing the aforementioned amendments and thoroughly safeguarding the fundamental right to freedom of private communication conferred upon the people by the Constitution.

In accordance with Article 18, Paragraph 3 of this Draft, any wiretapping data or derivative evidence obtained unlawfully shall not be admissible in judicial proceedings, echoing the aforementioned amendments and thoroughly safeguarding the fundamental right to freedom of private communication conferred upon the people by the Constitution.

Attachments

Draft Amendments to the Communication Security and Surveillance Act (JRF Version)

Press Contact

Kao Jung-chih, Attorney-at-Law, Office Director, Judicial Reform Foundation 02-2523-1178