Press Conference Opposing Certain Provisions of the Draft Amendment to the Communication Security and Surveillance Act

On January 1, 2006, the newly amended Communication Security and Surveillance Act (hereinafter referred to as the "New Communication Security and Surveillance Act") passed its first reading. Following analysis by numerous scholars and practitioners, it was found that the direction of the amendment to the New Act is certainly correct in some respects. For example, the current provision allowing a "prosecutor" to issue a wiretap warrant was revised to require an application to be made to a "court" for issuance. Another example is the explicit provision that evidence obtained through "illegal wiretapping" shall not only be inadmissible in criminal proceedings, but also "inadmissible as evidence" in civil, administrative, or other proceedings. Although the rule making it inadmissible in "all proceedings" is slightly strict, it can be said to be a step forward in the protection of human rights.

However, there are still many ill-considered contents. For example, "emergency wiretapping," which should inherently be narrow in scope, urgent, and exceptional in nature, has been expanded almost without limitation. Furthermore, issues that have long been criticized in practice—such as "overdue wiretapping," "wiretapping involving contents unrelated to the current case," "failure to fulfill the obligation to notify after wiretapping is completed," and "lax subsequent control over wiretapped data"—have not been addressed by proactive provisions for improvement in the new act. Moreover, when citizens face the risk of having their privacy and freedom of private communication infringed upon by the state, there are no corresponding remedy channels prescribed for requesting the review or destruction of such data.

In fact, changing the requirement so that "wiretap warrants are issued by the court" merely serves as a checkpoint at the "front door"; the rampant approval rate for wiretaps is expected to improve slightly through the court's more neutral and objective review. However, adopting the "principle of judicial reservation" is not a "cure-all." During and after execution, there are still many areas prone to malpractice. The failure to pay sufficient attention to these during the legislative amendment process demonstrates the ill-considered nature of the New Communication Security and Surveillance Act.

Therefore, upholding its consistent spirit of monitoring the judiciary, the Judicial Reform Foundation has proposed amendments and counter-proposals one by one for the aforementioned ill-considered aspects of the New Act. In addition to highlighting the inappropriate parts of the new law, we also hope to arouse public concern regarding the New Communication Security and Surveillance Act and make the public realize that any imperfection in this communications security legal system may cause severe harm to individual privacy, reputation, personal dignity, and freedom. This legislative amendment truly must be approached with the utmost caution!

Brief Comparison Table of Related Key Points

Provisions Involved	Content Passed at First Reading by Review Committee	JRF's Position
Article 5	The requirements for applying for a communication surveillance warrant are relatively simple, and the requirements for recording the contents of the application are too brief, failing to achieve the effect of "ex-ante control."	In practice, the recordings in applications are often inaccurate, especially regarding the grounds. If the application requirements are not appropriately increased and the degree of clarity in recording facts is not appropriately raised, not only will the aforementioned abuses fail to be eradicated, but it will also be difficult for judges to determine whether a communication surveillance warrant should be issued. In practice, the same target is frequently subjected to repeated surveillance. If this is not recorded in the application, it is difficult for judges to determine its necessity.
Article 6	The circumstances under which "emergency wiretapping" is permitted have been expanded to include matters related to elections. Furthermore, it has been further expanded to encompass the scope originally limited to "general wiretapping" (Article 5).	Circumstances involving election-related cases fail to comply with the restriction of the "principle of serious crimes." Encompassing everything indiscriminately in a "dragnet" approach, regardless of severity, is highly debatable and more likely to give rise to situations violating the principle of proportionality; therefore, it should be deleted. Logically, the scope of "emergency wiretapping" should be smaller than that of "general wiretapping"; therefore, the portion connecting to Article 5 should also be deleted. There should be clearer provisions on how to handle situations when "other criminal facts are intercepted during wiretapping."
Article 12	The application requirements for continuing wiretapping upon the expiration of the surveillance period are too simple, resulting in the widespread practice of "overdue wiretapping."	The extension of the period constitutes an aggravation of the infringement. Therefore, the application requirements for "continued wiretapping" should not be overly brief, and facts and reasons explaining the "necessity of continued wiretapping" should be required once again to facilitate a more meticulous judicial judgment.
Article 15	The provisions regarding the issuance of notices to the person under surveillance are too brief, and without amendment, it will be difficult to change the malpractice in practice of failing to fulfill the notification obligation.	Since the power to issue surveillance warrants has been transferred to the court, it is appropriate for the court to also issue the notification to the person under surveillance. Moreover, the process and timeline of the notification should be explicitly stipulated to avoid the current practical malpractice of shifting responsibilities. Explicitly stipulate the matters that must be recorded in the notice so that the people can initially understand the situation of being under surveillance, thereby making it possible to further seek remedies for improper infringement of rights.
Article 16	Provisions regarding "ex-post control" over the executing authority are lax and ineffective, rendering this article a dead letter.	It should be explicitly stipulated that the executing authority must report to the court in "written form" on a "monthly basis." The court may also order the executing authority to submit reports at any time and dispatch personnel to the execution site to monitor the execution situation, thereby facilitating ex-post judicial control. Furthermore, the legal consequence of forfeiture of rights upon violating the reporting obligation should be stipulated. The National Communications Commission should also be introduced as an external control body.
Article 17	Data obtained from communication surveillance is regarded as state-owned, reducing citizens to objects of state domination, leaving them in a passive and unreasonable state where they are left at the mercy of the state regarding their own personal information.	Grant citizens the right to apply for review or destruction, shifting them from a passive position to a more active request. Clearly stipulate the retention time limits and circumstances for mandatory destruction of data obtained from communication surveillance, and have the court and the National Communications Commission control the destruction process to ensure public credibility.

Attachments

Comparison Table of Communication Security and Surveillance Act Provisions