Wiretapping Amendment Goes Backward—Blind Interception and Recording Violates Privacy

The amendment to the Communication Security and Surveillance Act, proposed to address deficiencies in our current wiretapping system such as "one blind spot, two construction sites, and three ignored areas," was mutilated during cross-party negotiations after its first reading. Yet, the die is cast and it is about to pass its third reading, which is deeply lamentable.

Our communications surveillance equipment is procured from advanced Western countries, and its technical capabilities are beyond doubt, but our rule-of-law standards are worlds apart. The "one blind spot" refers to the fact that our wiretapping practice adopts a drift-net-style "blind interception and recording method," rather than the "simultaneous interception method" used in countries advanced in the rule of law. Simultaneous interception usually involves prosecutors and police holding a wiretap warrant issued by a court, going to the telecommunications operator's equipment room to tap and record communications. Telecommunications operators must also send personnel to be present and witness the process to avoid unauthorized wiretaps or mishearings, a rule known as the "four-eyes-principle."

One Blind Spot and Two Construction Sites Remain at a Standstill

This implementation method, which is less intrusive to people's privacy yet most effective for criminal investigation, prevents blunder events such as "blank discs," "wrong phone numbers," or "misheard targets" from happening because someone is present for real-time monitoring. If prosecutors and police hear information that a suspect is about to flee the country, that firearms are about to be smuggled in, or that a drug transaction has been arranged, they can also respond immediately. In addition, since wiretapping is only permitted when someone is present, it is realistically impossible to launch a widespread, all-encompassing wiretapping operation; prosecutors and police can only and will only wiretap major crimes where it is "truly necessary." This is precisely the background factor explaining why the total statistical figures for criminal wiretaps in countries like the United States, Japan, and Germany are still far lower than ours.

Conversely, in our wiretapping practice, except for kidnapping cases or "special circumstances" such as those involving Lin Hsiu-t'ao (林秀濤) and Kor Chien-ming (柯建銘), we adopt the "blind interception and recording method," which incurs low wiretapping costs and constitutes the greatest infringement on the freedom of private communication. Any call made to a targeted phone number (even if it is just ordering a pizza) is uniformly monitored by machinery and equipment and automatically burned onto discs (100MB of communication privacy costs less than 1 NTD). Prosecutors and police then periodically retrieve these "machine-mass-produced" discs to leisurely search for information.

Furthermore, let us consider the issue of the "two construction sites." The locations where our wiretaps are hooked up are not the equipment rooms of telecommunications operators, but rather two setup agencies respectively located in the Criminal Investigation Bureau and the Investigation Bureau. Setting aside the rumors of political surveillance and defense that can never be eradicated in political circles, and focusing solely on criminal wiretapping: the police and investigative agencies are part of a unified administration, and they themselves are prosecuting agencies that investigate crimes while concurrently holding the sensitive wiretapping operations, thereby lacking neutrality in appearance. With the "one blind spot and two construction sites" remaining at a standstill, what kind of legal amendment is this?

Minor Patches Are Unlikely to Correct Practice

Next are the pernicious effects of the "three ignored areas": posthumous oversight is managed by no one, wiretapping for off-target crimes cannot be regulated, and communication records are not regulated at all. Unfortunately, the "three areas to be regulated" countermeasures proposed in the first-reading amendment were severely compromised behind closed doors in negotiations: the Judicial Yuan boycotted provisions on post-hoc confirmation of illegality, the Ministry of Justice opposed provisions on wiretapping for off-target crimes, and the National Police Agency strongly resisted the principle of judicial reservation for communication records. Ultimately reflected in the new Communication Security and Surveillance Act is an effort to maintain the status quo as much as possible. What is the status quo? Taking the retrieval of communication records as an example, in our country alone, the communication records retrieved from telecommunications operators within a "single week" reach over 10,000 phone numbers (eighty percent of which are retrieved by the police themselves), which is equivalent to the total number of retrievals in the entire country of Germany for "an entire year." Converted to a population ratio, our retrieval volume in just one week equals Germany's entire four-year volume!

The minor patches of the new Communication Security and Surveillance Act are unlikely to have the effect of correcting the "maximum infringement" practice and returning to the "principle of minimum infringement." Is this ultimately a law "guaranteeing" freedom of communication? Or a "suppressive" law?