Judges Should Not Issue Wiretap Warrants Ad Infinitum

During the rare Lunar New Year holiday, the prosecutors filed five consecutive appeals against the decision not to detain Chang Te-cheng. The High Court promptly revoked and remanded the case four times, leaving the parties involved to spend their holidays idling away at the court. The entire process was ridiculed by the outside world as a 'New Year judicial farce of five hurdles and thirty thousand NTD in prizes.' The High Court's revocations and remandments were criticized as an abuse of power, casting serious doubt on the impartiality of detention decisions.

Why does this thankless judicial fate repeat itself?

One of the main reasons is that the authorities in charge always believe that fast is good and correct. Looking at the 'Points of Attention for Courts Handling Cases of Major and Notorious Criminal Defendants Involving Applications for Detention During Investigation' applicable to this case, they are replete with regulations demanding judges to quickly summon, quickly question, quickly rule, and quickly send within twenty-four hours. Every step makes people tense. This not only contradicts relevant provisions of the Code of Criminal Procedure, such as 'the district court shall, within three days after receiving the statement of appeal, fill out an opinion form and send it to the high court,' and 'the appellate court shall render a ruling within ten days,' but when authorities prioritize speed, how can judges still care about fairness? The High Court hurried to transform the questions raised by the prosecutor into its own and quickly threw them back to the district court for retrial. Naturally, it could not prudently require defense counsel to submit defenses against each point of the prosecutor's appeal statement before making an impartial adjudication. As for the provision in the Points of Attention stating that 'the High Court shall, as much as possible, render rulings to grant, reject, or alter the disposition itself,' it was naturally cast to the winds.

Review procedures that seek only speed without knowing restraint easily degenerate into 'institutionalized abuse of power.' The Chang Te-cheng detention case is a clear example.

There is another category of court review mechanisms that seek speed but disregard procedural fairness: the wiretap warrant review and rejection mechanism.

When prosecutors apply for a wiretap warrant, the current practice in various district courts is generally for the publicly accessible duty judge to review it. On the one hand, this allows prosecutors to avoid judges who should legally recuse themselves during the application; on the other hand, it also gives prosecutors the opportunity to cherry-pick judges. There are three main types of wiretap applications by prosecutors: first, 'new lines,' where no wiretapping has ever been implemented; second, 'continuation lines,' where previously approved wiretaps are to be continued after the wiretapping period expires; and third, 'expansion lines,' where new wiretapping targets are heard during the period of a previously approved wiretap. The focus of review for these three types varies. New lines should focus on wiretapping as a 'last resort'; continuation lines should weigh more carefully the 'minimal infringement' of wiretapping; and expansion lines should emphasize 'connection' with the original wiretapped target. Furthermore, because continuation and expansion lines deepen and expand the compulsory infringement upon people's right to privacy through wiretapping, the courts should naturally increase the intensity of review. The fulfillment of the requirements of necessity, last resort, minimal infringement, and connection cannot be established merely on the precedent of previously approved wiretaps. The review of continuation and expansion lines must particularly look back to examine the legality and legitimacy of the originally approved lines in order to comply with the proportionality principle articulated in Judicial Yuan Interpretation No. 631.

Since the focus and intensity of review differ, if new lines, continuation lines, and expansion lines are handed over to different duty judges for review, multiple angles of inspection, reflection, and textual dialogue between successive judges could naturally lead to a more comprehensive decision. This is expected to balance the purpose of wiretapping with due process of law—where the wiretapped subject is completely unable to defend or point out errors beforehand—and prevent prosecutors from arbitrarily picking judges with lenient mentalities to make applications, thereby upholding the principle of neutral case assignment.

What is going on with current practical practices?

In current practice, in most district courts nationwide, after the duty judge approves a wiretap, the subsequent applications for continuation and expansion lines are forcibly assigned to that same judge for review, even if they are not on duty. If the judge continues to approve them, the continuation and expansion cases will keep clinging to them, and they can keep approving them until the prosecutor is satisfied and no longer wishes to apply (issuing wiretap warrants ad infinitum to a single judge), without any constraints. The reason is that the authorities in charge believe that review by the approving judge will be fast, correct, confidential, and consistent in standards. However, they completely ignore that judges are human, not gods. Psychologists' observations that 'overconfidence in surviving memories easily leads to erroneous decisions' can also happen to judges. The first lesson in the history of due process of law also demands that no one may become a judge in their own case, because they will not and cannot impartially review their own mistakes. How could or how can the same judge review whether their previous approval contained errors, and how can they rid their mindset of preconceived notions about the case?

Power is inherently a form of desire; without moderate checks and balances, it very easily expands infinitely to the realm of abuse, loss of control, and corruption. This is a historical law.

How did institutionalized abuse of power come about?

The 'wiretapping duo' composed of the applying prosecutor and the original approving judge holds immense power. Under this historical law, they can infinitely apply for and approve the continuation and expansion of lines—expanding then continuing, continuing then expanding. As long as the two are not transferred, they can deceitfully monitor an entire group network for a lifetime, including most innocent intercepted individuals. In the end, approval follows the most consistent standard. The policy rhetoric that 'the fewer people who know about wiretapping, the better' is an excellent excuse to cover up the failure of supervision by the authorities, yet it places the 'wiretapping duo' in an unjust position. The logical flaw in this rhetoric is also: since the fewer people who know, the better, why is it that when a wiretap application is rejected, the prosecutor can change judges to apply for the same case, changing repeatedly until a judge approves it, without having to cling to the original rejecting judge for continued review like with the approval of new lines? Doesn't this let more people know who is going to be wiretapped? Isn't this an institutional bias toward approval? The authorities' claim that the judicial system will leak secrets and thus prevent investigations from proceeding is an unsupported speculation with zero confidence in their own people. Taking the pampering of officials' delicacy as their duty while disregarding the risk of harm to people's rights is a profound misunderstanding of the master-servant relationship and an ignorance of the root of power.

Justice must not only be done, but must be seen to be done. Our country's wiretapping system makes innocent intercepted individuals unable to know and see how their right to privacy is sacrificed during the pre-wiretap, during-wiretap, and post-wiretap stages, which is already unjust. It is not too much at all for them to rely on the intervention of different judges to see whether their sacrifice is made for loftier values of justice. Conversely, the system of issuing wiretap warrants ad infinitum by a single judge makes the exercise of judicial power more mystified and despotic, severely lacking a procedural sense of morality subject to restraint.

The case-assignment review system of issuing wiretap warrants ad infinitum by a single judge has no checks and balances mechanism against abusive applications and approvals, which will inevitably breed institutionalized abuse of power, lead to rampant wiretapping, and ultimately shame judicial independence. Critics who say that wiretapping in our country is rampant are right; from the perspective of the system of issuing wiretaps ad infinitum to a single judge, no grounds for refutation can be found.

Looking at foreign practical practices, Jürgen Maruhn, former presiding judge of a division of the Frankfurt Higher Regional Court in Germany, stated that the review of warrants by German investigative judges is handled on a rotational basis by duty judges, and the continuation of wiretaps is also approved or rejected by the duty investigative judge receiving the application on that day, lacking our country's case-assignment review system of issuing wiretaps ad infinitum to a single judge. According to U.S. wiretapping statutes and literature records, not only is there no rule requiring the same judge to receive and review continuation and expansion lines, but it is even stipulated that every application for continuation must be submitted with all previously approved application materials for review. In addition, different courts may also accept applications for continuation lines. In comparative legal systems, the current practice of most district courts in our country can hardly be called 'virtue is not left to stand alone; he who practices it will have neighbors.'

What do the statistical data reveal?

Making a further quantitative analysis, the district courts in our country that adopt rotational reviews by duty judges include four courts: New Taipei District Court, Hsinchu District Court, Yunlin District Court, and Lienchiang District Court. All other district courts adopt the aforementioned system of issuing wiretaps ad infinitum to a single judge. Taking the approval rate for continuation lines in 2013 as an example, according to Judicial Yuan statistics, the total number of accepted continuation line cases ('Sheng-Chien-Hsu' case code) in district courts adopting the single-judge wiretap ad infinitum system was 16,169, with 14,639 approved, an approval rate of 90.60%. The total number of accepted cases in district courts not adopting the single-judge wiretap ad infinitum system was 4,065, with 3,425 approved, an approval rate of 86.65%. Borrowing Judge Ho Chün-hao's calculation results using the chi-square test, at a confidence level of 99.999974%, the approval rate for continuation cases handled under the single-judge wiretap ad infinitum system is significantly higher than that under the non-single-judge system. This analytical result can support the deep-seated concerns about institutionalized abusive approvals mentioned earlier, and also shows that entrusting continuation line applications to different judges for review exercises a restraining and checking effect. The claim of official protectionism cannot be established.

Critics argue that a lower approval rate will affect court convictions and subsequently impact public security. According to Judicial Yuan statistics, the conviction rates in district courts adopting the single-judge wiretap ad infinitum system (number of convicted persons ÷ [number of convicted persons + number of acquitted persons], covering all prosecuted cases and cases applied for summary judgment disposal) were 96.86%, 97.11%, and 97.06% sequentially from 2011 to 2013. The conviction rates in district courts not adopting the single-judge wiretap ad infinitum system were 97.79%, 98.25%, and 98.28% sequentially. The approval rate of the latter was lower than the former, yet its conviction rate was higher than the former for three consecutive years. There is no data evidence supporting that a low approval rate will affect convictions and public security. If critics claim that crime lurks around us at any time and that low-supervision, low-cost wiretapping methods are indispensable for prevention and control, they should present relevant data and information for support, rather than relying entirely on subjective experiences or imaginations.

Institutional design should inherently exert its optimal efficacy while preventing the executors from abusing power to destruction. The pros and cons caused by an institutional design that emphasizes only speed in today's society show that disadvantages outweigh advantages no matter how one looks at it. The Chiang Kuo-chiang case, the Hung Chung-chiu case, the Dapu land development case, the September political strife, and others are all instances where due process of law was disregarded in pursuit of a single value of seizing the lead and speed, paying huge social costs and irrecoverable prices. The Chang Te-cheng detention case is merely a fruit falling once again in this social atmosphere; the system of issuing wiretap warrants ad infinitum by a single judge is the fertile soil that nurtures it.

Institutional design supervisors should perceive social pulses and learn historical lessons. Efficiency is a good thing, but one should note that rushing is frequently a fig leaf for laziness and incompetence, and partiality leading to abuse of power due to rushing should be guarded against strictly; both fast and good rely even more on detailed review and planning, especially the establishment of review standards. In short, justice delayed may still be justice, but without procedural justice, there is no justice. It is truly a pity that this amendment to the Communication Security and Surveillance Act failed to touch upon due process of law for case assignment and review. The warrant-issuing system of wiretapping ad infinitum by a single judge should change its course; it is correct for duty judges to take turns in rotation to approve or reject them.

※ Originally published in the Freedom Republican on February 17, 2014