Who is the Public Enemy?

After details of the U.S. NSA's long-term communications surveillance were exposed by Edward Snowden, various communication and internet surveillance measures jointly promoted by the government and industry gradually came to light. Although the U.S. government was once forced to promise improvements in the transparency of its surveillance programs, major U.S. internet industry players such as Facebook, Google, AOL, Microsoft, and Twitter finally released an open letter to the U.S. President on December 9. They not only jointly opposed surveillance programs and established a new website, Reform Government Surveillance, as a base to articulate their basic philosophies and stances, but also called on governments worldwide to carry out large-scale reforms of surveillance policies. The future developments of this not-too-late joint action are well worth close observation.

Regardless of whether the U.S. government's promises are credible, and whether the industry's joint action stems from a belief in values or is a major PR stunt based on long-term commercial interest considerations, it at least takes the first step toward reform. In contrast, Taiwan—where a scandal involving the long-term abuse of communication surveillance by law enforcement authorities erupted due to the September political strife—displays a dishearteningly low level of sincerity in self-reflection and capability for analytical reporting among businesses, the government, and the media alike.

The Communication Surveillance Center under the Investigation Bureau and the National Police Agency has never, since the enactment of the Communication Security and Surveillance Act in 1999, received sufficient authorization from this "operational law" to carry out lawful and constitutional communication surveillance. Even though the relevant organizational regulations of the Investigation Bureau and the National Police Agency subsequently legitimized the Communication Surveillance Center through "organizational laws," this can by no means be directly equated with the ambiguously worded phrase "setup agency" added during the 2007 amendment of the Communication Security and Surveillance Act.

Therefore, if legislators are serious about amending the law, they should more thoroughly understand how the Communication Surveillance Center actually controls the routing and processes of telecommunications operators' lines, as well as the daily cooperative dynamics and measures between prosecutors, investigators, and operators. They must examine whether this has reached a point where any communication and personal data can be grasped, filtered, or even reported through the center, enabling extensive eavesdropping without a wiretap warrant in practice, rendering auditing and inspection fundamentally impossible.

From the perspective of the basic technological architecture of communication networks, telecommunication and internet operators play the role of gatekeepers determining whether citizens' constitutional privacy of communication can be protected. Meanwhile, the procedures for issuing wiretap warrants and communication record retrieval warrants serve as supervisory mechanisms to ensure that the technological architecture is not misused. However, a careful analysis of the contents of the Communication Security and Surveillance Act and its Enforcement Rules reveals that, behind its veneer of neutrality, it is actually a bad law that hijacks the default model of communication architecture designed to protect privacy. By heavily expanding the scope of "obligations to assist law enforcement" imposed on operators regarding personnel, software and hardware equipment, and data acquisition, it paves a convenient shortcut for prosecutors and investigators to enforce the law, constituting an inherently unbalanced and unconstitutional design.

Worse still, during the legislative formulation and negotiation process for laws that so blatantly infringe upon consumer rights, Taiwanese operators seemed willing to negotiate with the government only over matters directly affecting their own interests, such as how to share the equipment setup and execution costs derived from cooperating with the Communication Surveillance Center. They have almost never defended the fundamental constitutional and democratic value of communication privacy.

The communication privacy of Taiwan's society was long ago determined by an architecture tailored by political and business entities for convenience and profit. The procedural guarantees provided by wiretap warrants are merely a technological illusion crafted by the joint abuse of information asymmetry between political and business forces. Under this political-business accomplice structure, "communication surveillance" is the "reality," while "protection" is completely an "illusion." Even if the Grand Justices' mention of a "reasonable expectation of privacy" is familiar to the ear, you and I can have "no expectations whatsoever" regarding the communication privacy that political and business entities are busy jointly acting as the "public enemy" to protect while swearing to uphold. Only through thorough restructuring can we barely realize our most humble aspirations for communication privacy.