Amendments to the Communication Security and Surveillance Act Must Not Roll Back Human Rights!

Human rights organizations highly commend the upcoming second and third readings of the draft amendments to the Communication Security and Surveillance Act, which transfer the authority to issue interception warrants (commonly known as wiretap warrants) from prosecutors to judges. However, some legislators intend to grant judicial police the direct authority to apply to the court for interception warrants during this legislative revision. Human rights organizations argue that this approach contravenes the legal systems of advanced nations and represents a serious regression.

Under the federal legal system of the United States, although judicial police may directly apply to a judge for a search warrant, wiretap warrants can only be applied for with the authorization of a prosecutor (or the Attorney General) (see 18 U.S.C. §2516). The rationale is that while a search only temporarily infringes upon an individual's rights, wiretapping constitutes a long-term and extensive violation. Therefore, strict quality control must be exercised by prosecutors—the legal guardians of the criminal investigation process—to prevent police abuse of power.

In our country, judicial police currently do not have the authority to directly apply to the court for search warrants (see Article 128-1, Paragraph 2 of the Code of Criminal Procedure, which requires prior prosecutorial approval). This restriction is even stricter than that in the United States; if wiretapping restrictions are loosened first, would it not be putting the cart before the horse? Therefore, before relevant objective and subjective environments are fully established (including the revision of search warrants application methods and the improvement of police legal literacy), it is truly inappropriate to rashly exclude the prosecutor's preliminary review power over police wiretap applications.

Furthermore, the current professional caliber of the police force has not yet gained the general trust and recognition of society. Human rights organizations believe that it is still inappropriate at this stage for them to directly apply to the court for wiretap warrants, and we prefer to retain an additional safety valve through prosecutorial oversight.

Moreover, judicial control over wiretapping should not be limited to the application phase; it must also extend to the execution phase. That is, whether judicial police obtained a wiretap warrant when conducting wiretapping, whether they exceeded the authorized wiretap period, whether intercepted contents and data were abused, and whether entry and exit to the wiretap monitoring facility were strictly controlled all rely on regular and irregular audits conducted by the Supreme Prosecutors Office in accordance with the law. If judicial police agencies are allowed to break away from prosecutorial control at the application stage, the aforementioned ongoing and ex-post audits during the execution phase cannot be implemented, and the danger of improper human rights violations will be self-evident.

Human rights organizations suggest that this legislative amendment should explicitly stipulate that when judicial police deem wiretapping necessary while investigating crimes, they shall report to a prosecutor for dedicated direction, and the prosecutor shall apply for the wiretap warrant to the judge in their own name, which is then handed over to the judicial police for execution. Only through this approach can the protection of human rights be balanced with the investigation of crimes.