Judicial Reform Foundation’s Position Paper Opposing Certain Provisions of the Communication Security and Surveillance Act

I. Introduction

On January 1, 2006, the newly amended Communication Security and Surveillance Act (hereinafter the "New Surveillance Act") passed its first reading. Its content is the current "Review Committee Version," and the subsequent second and third reading procedures will generally no longer involve article-by-article discussion and revision.
Following analyses by numerous scholars and practitioners, it has been found that while the "New Surveillance Act" undeniably contains some correct directions—such as shifting the current provision where prosecutors alone could issue wiretap warrants to requiring an application to a court for issuance, and explicitly stipulating that evidence obtained through illegal wiretapping shall be inadmissible not only in criminal proceedings but also in civil, administrative, or other proceedings—though strict, these changes can still be said to move in the direction of human rights protection.

However, there remain many ill-considered provisions. For instance, "emergency surveillance," which should by nature be narrow, urgent, and exceptional, is expanded almost without restriction; furthermore, issues heavily criticized in practice such as "overdue surveillance," "surveillance concerning other cases," "failure to fulfill notification duties," and "lax follow-up control" are not addressed by any proactive improvement provisions in the new act. Moreover, when citizens face the imminent risk of having their privacy and freedom of private communication infringed upon by the state, they are left without corresponding remedies to request review or destruction. In addition, "judge reservation" is not a "panacea"; it merely serves as a "front-door gatekeeping" mechanism, yet the potential abuses during and after execution were not given adequate attention during the amendment process. All of these are indicative of the ill-considered content of the "New Surveillance Act."

Therefore, upholding its consistent spirit of judicial oversight, the Judicial Reform Foundation has proposed revised articles and counter-proposals one by one for the aforementioned ill-considered aspects of the "New Surveillance Act." In addition to highlighting the inappropriate parts of the new act, we also hope to arouse public concern regarding the "New Surveillance Act" and raise awareness of how imperfections in the legal system governing people's communications may cause significant harm to personal privacy, reputation, personality, and freedom rights—consequences that must be approached with utmost caution!

II. Aspects in Favor

1. We support the amendment of the "New Surveillance Act" toward the direction of "surveillance warrants issued by judges." Adopting the "principle of judge reservation" aligns with the trend of human rights protection.
2. We support the amendment of the "New Surveillance Act" in adding provisions stating that evidence obtained through illegal surveillance may be excluded in certain proceedings and shall not be admissible as evidence.

III. Aspects Opposed

1. Opposition to the inappropriate expansion of the scope of "emergency surveillance" (Article 6):
   The "New Surveillance Act" incorporates offenses against electoral integrity under Chapter V of the Criminal Code, the Civil and Criminal Servants Election and Recall Act, and the Presidential and Vice Presidential Election and Recall Act into the scope of emergency surveillance. Such legislation fails to adhere to the limitation of the "principle of serious crimes," adopting an indiscriminate "sweeping up" approach regardless of gravity, which is highly debatable and easily gives rise to violations of the principle of proportionality. Therefore, it should be deleted.
   Furthermore, the scope in which "emergency surveillance" may be implemented (Article 6, Paragraph 1, main text) turns out to be broader than the scope of "general surveillance" (Article 5, Paragraph 1). This is inconsistent with the spirit that "emergency surveillance" should merely be rare and exceptional. Not only does it violate the principle of proportionality, but it also carries the risk of infringing upon human rights, and thus should likewise be deleted.
   
2. Strengthening the fulfillment of the "notification duty" toward the surveilled individual (Article 15):
   Because communications surveillance is usually conducted in secret, even if surveilled individuals suffer unlawful infringements upon their freedom of private communication, they often have no way of knowing and naturally cannot seek remedies.
   Although current law stipulates that surveilled individuals should be notified after communications surveillance concludes, this is mostly unfulfilled in current practice. Therefore, shifting the notification duty to the court would not only ensure opportunities for the surveilled individual's right to remedy, but would also have the effect of curbing rampant surveillance in current practice.
   
3. Strengthening "follow-up control" by the court after issuing a surveillance warrant (Article 16):
   Since the power to issue communications surveillance warrants has been transferred to the courts, to fully implement the principle of judge reservation, in addition to the "ex ante" issuing power, courts should also be vested with "ex post" review and monitoring powers.
   Therefore, executing agencies should have the duty to report to the court on a monthly basis, and courts should naturally have the authority to order executing agencies to submit reports at any time, as well as dispatch personnel to execution sites at any time to supervise execution conditions. If the reporting duty is violated, a preclusion effect barring the continuation of surveillance should be explicitly stipulated.
   
4. Strengthening control by the Communications Commission (Article 16, Paragraph 3):
   The National Communications Commission manages national communications affairs. External control over the execution of communications surveillance by the Commission can also strengthen the checks and balances of the separation of powers and eradicate abuses.
   
5. Enhancing citizens' right to request review and destruction (Article 17):
   Based on the concept of personal information rights inherent to an individual, regarding any communications data concerning a person, the state has no grounds to interfere with a citizen's disposition of their own information unless there are major public interest reasons. Therefore, personal communications data obtained by the state should, in principle, grant citizens the right to request review and destruction. Moreover, to eliminate disputes and prevent the improper leakage of information, the procedures for retention and destruction should also be regulated to ensure seriousness and caution.

Brief Comparative Table of Key Points

Relevant Articles	First-Reading Content Passed by the Review Committee	Position of the Judicial Reform Foundation
Article 5	The requirements for applying for a communications surveillance warrant are too simple, and the requirements for recording the contents of the application are also too brief, failing to achieve the effect of "ex ante control."	In practice, the entries in applications are often inaccurate, especially the reasoning section. Without appropriately increasing application requirements and suitably raising the level of clarity in factual records, not only will the aforementioned abuses be impossible to eradicate, but it will also be difficult for judges to judge whether a communications surveillance warrant should be issued. In practice, repeated surveillance is often conducted on the same target; if this is not recorded on the application, it is also difficult for judges to judge its necessity.
Article 6	The circumstances under which "emergency wiretapping" is permitted are expanded to election-related scopes, and are further expanded to scopes originally restricted only to "general wiretapping" (Article 5).	Election-related cases fail to adhere to the limitation of the "principle of serious crimes," adopting an indiscriminate "sweeping up" approach regardless of gravity, which is highly debatable and easily gives rise to violations of the principle of proportionality, and therefore should be deleted. The scope of "emergency wiretapping" should logically be smaller than "general wiretapping"; thus, the portion linking to Article 5 should also be deleted. There should be clearer provisions on how to handle situations when "other criminal facts are intercepted during surveillance."
Article 12	The application requirements for continuing wiretapping upon the expiration of the wiretapping period are too simple, leading to the prevalence of "overdue wiretapping" in practice.	The extension of a period constitutes an intensification of infringement; therefore, application requirements for "continued surveillance" should not be overly brief, and facts and reasons demonstrating the "necessity of continued surveillance" should once again be required to be explained, facilitating more meticulous judicial judgment.
Article 15	Provisions on issuing notices to surveilled individuals are too brief, making it difficult to change the corrupt practice of failing to fulfill the notification duty in practice without amendment.	Since the power to issue surveillance warrants has been transferred to the courts, the issuance of notices to surveilled individuals should also appropriately be carried out by the courts, and the workflow and timeline of notifications should be explicitly stipulated to avoid current practical buck-passing abuses. Explicitly stipulate matters that must be recorded in the notice so that citizens can initially understand the circumstances of being surveilled, creating the possibility for further seeking remedies for improper rights infringements.
Article 16	Provisions on "ex post control" over executing agencies are loose and ineffective, rendering this article a dead letter.	Explicitly stipulate that executing agencies must report to the court in "written form" on a "monthly basis." Courts may also order executing agencies to submit reports at any time and dispatch personnel to execution sites to supervise execution conditions, facilitating ex post control by the court. Furthermore, the preclusion effect for violating the reporting duty is stipulated, and the National Communications Commission is introduced as an external control body.
Article 17	Data obtained from communications surveillance is regarded as state-owned, reducing citizens to objects of state domination and leaving them in an unreasonable passive state regarding their own inherently personal information, entirely at the mercy of the state.	Grant citizens the right to request review or destruction, shifting from a passive position to a more active request. Explicitly stipulate retention time limits and circumstances for mandatory destruction of data obtained through communications surveillance, with the destruction process controlled by the courts and the National Communications Commission to ensure public credibility.