Backlash Against Wiretapping Act Amendments Highlights Imbalanced Investigation Mindset of Prosecutors and Police

The passage of amendments to the Communication Security and Surveillance Act has triggered widespread backlash from prosecutors, police, and investigators. Focusing solely on the amendment regarding communication-record retrieval as an example: the amendments changed the previous practice where prosecutors and police could freely access communication records and subscriber data without safeguards. Like live wiretaps, such actions are now limited to serious crimes carrying a minimum statutory penalty of three years or more of imprisonment, and are subject to judicial reservation. This is an amendment that correctly understands the essence of communication surveillance. Because communication content surveillance requires communication records as a prerequisite, and knowing subscriber data is also necessary for judgment. This is also consistent with the core intent of Judicial Yuan Interpretation No. 631, which protects the people's freedom of private communication, including the right "to be free from arbitrary intrusion by the state and others regarding matters such as the existence, objects, time, method, and content of communications."

Recently, a prosecutor from the Changhua District Prosecutors Office published an op-ed pointing out that crimes not carrying a minimum sentence of three years—such as intimidation or usury—allow for searches, so why can communication records not be retrieved? The author further questioned whether the new law fails to authorize the retrieval of communication records during court trials, depriving even parties in civil cases of the right to use communication records as evidence, which violates the principle of proportionality and infringes upon people's right of litigation. This is not only alarmist, but also riddled with conceptual and logical fallacies.

First, the legislature's adoption of the "serious crime principle" to limit compulsory disposition powers regarding wiretapping (including communication records) is based on considerations of the principle of proportionality, safeguarding human dignity, personal subjectivity, and the completeness of personality development. The right to privacy of confidential communication is "an indispensable fundamental right for protecting the private sphere of individual life from state and other intrusions and for maintaining the autonomous control of personal data" (Interpretation No. 603). Weighing its irreversible infringement, not all crimes can be allowed to be investigated using this investigative method. Why can crimes like intimidation and usury trigger searches because a victim has stepped forward to accuse? A victim's accusation is the most advantageous evidence; finding evidence through search and seizure sufficient to corroborate the truth of the victim's accusation is enough to indict—why retrieve communication records at all? Not to mention that victims applying for their own communication records as users are certainly not prohibited. What is the actual use of communication record evidence in trial practice for such cases? Even if prosecutors want to find other potential victims, there are too many available methods, such as accounting books seized through search and seizure. What on earth is the purpose of retrieving communication records? To check one by one with the defendant's friends and relatives whether they are victims based on communication records?

As for the claim that the court has no authorization basis for "intimidation" during trial and cannot retrieve communication records, this is even more nonsensical. It must be recognized that "compulsory dispositions in the investigative procedure" are distinct from "investigation of evidence in the trial procedure." As long as communication records are evidence with investigative necessity, whether initiated by the court ex officio or upon application by a party during the trial, the judge has the authority to retrieve them. These legal bases are found in the Code of Criminal Procedure, and have nothing to do with the Communication Security and Surveillance Act. As for whether the court's use of communication records themselves as evidence infringes upon the parties' right to privacy, that is a matter at the level of the exclusionary rule of evidence, and is also unrelated to the Communication Security and Surveillance Act.

In addition, the claim that civil cases "completely deprive parties of the investigative evidentiary method of retrieving communication records" lacks any discernible basis. Based on a party's contract with the telecommunications company, they can naturally retrieve their own communication records—how could they lose this evidentiary method? If it refers to retrieving communication records unrelated to oneself, the court may initiate such action during the trial. In short, the Communication Security and Surveillance Act does not prohibit judges or restrict the people; what it seeks to restrain is solely the compulsory disposition power of prosecutors and police to retrieve communication records.

In fact, regarding communication records, what makes the new law truly "induce repeated head-shaking" is that the exceptions are overly broad. In addition to allowing prosecutors and police to retrieve communication records in advance under urgent circumstances without time to apply to a judge, it also "compromises" with specific criminal suspects by excluding the principle of judicial reservation. Some of these crimes have even strayed from the serious crime principle, such as robbery, fraud, and intimidation, and there are even crimes that do not harm the legal interests of others, such as simple drug offenders. Legislation that already barely met the principle of proportionality through compromises has once again opened the back door to human rights protection due to the institutional standpoint and deep-seated investigative mindset of prosecutors and police. Coupled with the lack of subsequent supervision by specialized divisions and dedicated judges, it is foreseeable that prosecutors and police will in the future "replace principles with exceptions," rendering the serious crime principle and the principle of judicial reservation practically defunct. From this perspective, these amendments are a "grotesque" regression. I agree that if the Executive Yuan does not request a reconsideration and fails to propose remedial amendments, it will be no surprise at all if an even greater judicial disaster occurs in the future!

This response is directed at the article <Imbalanced Amendments: The Premier Should Request Reconsideration>.

※ This article was published in the Liberty Plaza on January 20, 2014. This is the complete and unabridged text.