When Will the Abuse of Communications Records End?

The aftermath of the September Political Struggle gradually comes to an end. Despite the dramatic twists, the conclusion is as expected: the lobbying case fizzled out, the Special Investigation Division stood firm, the Prosecutor-General could not be impeached, and the lobbying high-ranking officials and lobbied prosecutors were not even targeted. Even worse, the amendments to the Communication Security and Surveillance Act (CSSA), proposed as a remedy following this wiretapping storm, were completely derailed due to the separate agendas of the "Four Heavenly Kings" (the Judicial Yuan, the Ministry of Justice, the National Police Agency, and the National Security Bureau) and fierce pushback from certain pan-blue legislators. All efforts to legalize wiretapping surveillance were reduced to zero; even though the bill had passed the first reading in the legislature, subsequent cross-party negotiations broke down one by one, resulting in near total failure. The September Political Struggle passed like a ship leaving no ripples in the water!

Take, for example, the legal amendment requiring prosecutors and police to first obtain a judge's warrant before retrieving communication records (such as call logs). This should have been the least controversial reform, and the draft bill even adopted a low standard of legislation to accommodate "our country's national conditions" (allowing prosecutors and police emergency retrieval powers, without adopting the German high standard where records can only be retrieved for "serious crimes"). However, the Four Heavenly Kings brandished a "public order scare tactic," warning us that once a judge's reservation principle is adopted, Taiwan will turn into a "crime paradise." We heard these exact same worn-out arguments when detention powers were transferred to the courts in 1995, when the CSSA was enacted in 1999, and when search warrants in 2001 and telecommunications surveillance in 2007 adopted the judge's reservation principle. Let me ask: are we living in a crime paradise right now?

Abusing Communication Records: A Descent into a Privacy Hell

No, but a "privacy hell" is right before our eyes. Thanks to eTag, simply by driving on the highway, we are treated by the state as quasi-criminal suspects, arbitrarily prying into motorists' itineraries for purposes other than toll collection. Simply by registering a SIM card, the details of our lives are gathered into communication records (including base station locations and personal user data) accessible to any police officer. Let's compare the data: our judicial statistics currently do not publish data on the retrieval of communication records, leaving outsiders in the dark. However, in 2010, when the National Communications Commission (NCC) queried data while reviewing fee reduction cases, it found that Taiwan has over 800,000 cases of communication record and user data retrievals annually, with the police being the largest requesting agency, accounting for nearly 80 percent. How shocking is this figure? Take Germany, for instance—a country renowned for its exemplary public order in Europe with a population about four times that of Taiwan. During the same statistical year, the total number of communication record retrieval cases in all of Germany (which adopts the judge's reservation principle) was 8,316, and the courts issued a total of 13,904 retrieval warrants. Adjusted for population ratio, our country's retrieval rate is about two hundred times that of Germany!

Despite such self-restraint in Germany regarding privacy interference, its constitutional guardians have not let down their guard. In 2008, the Federal Constitutional Court of Germany declared unconstitutional a state law permitting automatic license plate recognition on roads, and in 2010, it again declared unconstitutional the Telecommunications Surveillance Act, which required the mandatory retention of communication records. As for the principle of statutory reservation—which dictates that retrieving communication records must be preceded by a legal authorization basis—it has long become a common basic requirement in European laws since the European Court of Human Rights' Malone case in 1984. The United Kingdom, which lost that case, immediately amended its laws to legalize the retrieval practice.

Statutory Reservation and Judge's Reservation: Prerequisites for Lawful Retrieval

Returning to our Constitution, does it really tolerate a privacy hell? Let's first look at what the Grand Justices have to say. Interpretation No. 631 in 2007 explicitly pointed out that the freedom of private communication protected by Article 12 of the Constitution encompasses not only the "content" of communications but also their "status." Therefore, "the people have the right to be free from arbitrary interference by the state and others regarding matters such as the existence, objects, time, manner, and content of communications." Accordingly, the retrieval of communication records by prosecutors and police constitutes an interference with the status of communication privacy and naturally must comply with the principle of statutory reservation. The problem is that our laws completely lack a "statutory" basis authorizing the retrieval of communication records (authorizations via regulations under the Telecommunications Act are insufficient; see also Interpretation No. 443), resembling the state of British law prior to 1984. In other words, Taiwan's 800,000-plus annual retrieval cases—including the Special Investigation Division's retrieval of communication records belonging to Legislative Yuan President Wang Jin-pyng and others—are unlawful retrievals lacking a statutory authorization basis. Yet, for more than six years since the interpretation was issued, the Ministry of Justice, the competent authority for the CSSA, while overly enthusiastic about executing the death penalty, has turned a blind eye to filling the legal loopholes. Put bluntly, the provisions regarding communication records in the current CSSA draft were intended to legitimize the retrieval practices of prosecutors and police, preventing them from being declared unconstitutional once again. What position does the Ministry of Justice have to oppose this?

Finally, the most specious "compromise" argument is: require a warrant for retrieval, but do not require a judge's reservation; let prosecutors (or even police and investigators) issue them themselves. This "player and referee in one" model—where warrants are not issued by objective, independently functioning judges, but rather self-issued by prosecutors and police who are charged with criminal investigation ("applying with the left hand, approving with the right hand")—is precisely why the old CSSA was criticized by the Grand Justices as "hardly a reasonable and proper procedural regulation" and declared unconstitutional. Shall we remain deluded and enact a new, unconstitutional CSSA?

Can the Constitution and human rights ultimately fail to withstand the institutional egoism of prosecutors and police wanting to "save" trouble and judges wanting to "shirk" trouble (avoiding the increased burden brought by judge's reservation)? Why don't these obstructionists of the rule of law hiding in the secret rooms of negotiation bravely step out and let the entire citizenry witness who they are!