Closing Loopholes in the Legal Framework for Government Surveillance in Taiwan

Closing Loopholes in the Legal Framework for Government Surveillance in Taiwan

Closing Loopholes in the Legal Framework for Government Surveillance in Taiwan

All governments engage in some form of surveillance—including in Taiwan. According to a South China Morning Post news article, government authorities in the island democracy—mostly its intelligence and police units—reportedly made close to 70,000 demands from 2015 to 2016 to social media and internet service providers to disclose the content and parties’ communication, as well as location tracking and personal information of their clients without their knowledge. Government surveillance of communication and the legal requirements of telecommunication companies in assisting such surveillance in the country are regulated by the Communications Protection and Surveillance Act (通訊保障及監察法, hereafter Communications Act). [1] As the primary statutory basis in the communication domain, the Communications Act delegates surveillance authority in government agencies. Indeed, Article 1 indicates that the Communications Act “is enacted to safeguard the freedom of private communication and privacy, to protect from unlawful intrusion, and to ensure national security and maintain social order.” [2]

What Is the Communications Protection and Surveillance Act?

In accordance with the Communications Act, there are two lawful methods for government agencies to intercept personal information: (1) through an interception warrant sought by a prosecutor and issued by the court; and 2) surveillance initiated by intelligence agencies. The interception warrant generally needs to be sought by a prosecutor upon request by the police and issued by the court before communication interception can commence. In addition, there must be a reasonable belief that the content of the communication subject to surveillance is relevant to the case being investigated, and that it is difficult or impossible to collect or investigate the evidence by other means. [3] The court must issue the warrant within 48 hours; otherwise, the interception must end to guarantee legal due process.

The Communications Act also provides a statutory basis for intelligence surveillance. The intelligence agency does not require a warrant from the court when intercepting the communications of foreign governments or cross-border terrorist organizations for national security purposes. Article 7 of the Communications Act stipulates that when it is necessary to conduct surveillance in order to collect intelligence on foreign forces or their agents, hostile or otherwise, to protect national security, the head of the authority overseeing national intelligence may issue the interception warrant on the following communications:

  1. Domestic communications of foreign forces, hostile foreign forces, or their agents.
  2. Cross-border communications of foreign forces, hostile foreign forces, or their agents.
  3. Off-shore communications of foreign forces, hostile foreign forces, or their agents. [4]

As such, the intelligence agency does not appear to need an interception warrant from the court to intercept the communications of foreign governments and cross-border terrorist organizations for national security purposes. Under such circumstances, the head of the national intelligence agency, the National Security Bureau (NSB), is able to authorize the intercept.

Structural Deficiency of Current Regulatory Framework

Relying solely on these two methods presents several structural deficiencies. As reported by the Taiwan Association for Human Rights (TAHR), Taiwan has used wiretapping to obtain metadata and network content over many years in violation of digital human rights for the purpose of conducting criminal investigations. Increased surveillance activity is occurring in tandem with developments in Taiwan’s surveillance and wiretapping technology capabilities. It was also revealed that South Korea and Japan had begun cooperation and exchanging classified information with the “Five Eyes” intelligence partners—a UK-US agreement to share signals intelligence after World War II, a partnership which later expanded to include Australia, New Zealand and Canada—for providing access to the external communications of China, Hong Kong, and Taiwan.

Surveillance is generally a large-scale collection activity that potentially affects many more people than only those who are being targeted. Any organization conducting surveillance should apply the legal principles of probable cause, due process, and civilian oversight to government surveillance activities to protect human rights. The government needs to make its activities more transparent and accountable in open courts. Nevertheless, Ho Ming-syuan (何明諠), the lead author of the TAHR report, said that “a great number of device users had not been informed about the surveillance demands and were left in the dark.” Ho provided further critical evidence that “most authorities simply skipped the legal procedures by writing to the operators, asking for the information they wanted.”

The Implications for National Security Policy in Taiwan

While surveillance within its area of jurisdiction is to be expected, do Taiwan’s law enforcement authorities have sufficient authority to implement cross-border surveillance? How can government authorities and legal professionals ensure the right balance between national security and the rule of law without jeopardizing national security interests? The promulgation of five corresponding amendments with respect to national security (國安五法), which includes the Criminal Code, Classified National Security Information Act, National Security Act, and Act Governing Relations between the People of the Taiwan Area and the Mainland Area are an initial attempt to supplement the legal loopholes of Taiwan’s national security policy.

As illustration of the loopholes, take for instance the recent measures to strengthen national security and impose heavier punitive measures on those who undermine democracy under renewed threats from China. The Legislative Yuan amended the criminal code defining collusion as working with an “enemy state” or “foreign state,” which technically does not include China, given that Taiwan’s Constitution does not define China as a foreign country. In other words, Taiwanese prosecutors could not charge individuals for offenses listed in the Criminal Code if they allegedly spied for or colluded with China, Hong Kong, and Macau—because none of the three areas are categorized as a “state” as would by definition be constitutionally required. As such, the National Security Law was amended in June 2019 to explicitly include China as a political regime that is tantamount to an “enemy state” or “foreign state.” Furthermore, Article 2-1 of the Amended National Security Law prohibits the “detection, collection, consignation, or delivery” of confidential information and documentation in the form of pictures or articles. The Law also prohibits people from developing organizations in Taiwan for the official use of a foreign country. This includes military and political party activities, or any organizations established and assigned by other organizations, including civil organizations, which are used by foreign countries and the People’s Republic of China. [5] Article 2-2 of the National Security Law also expands national security protection to any Taiwanese-based server, banning people from prying, collecting, consigning, or delivering confidential electronic documents in the public sector. [6] These amendments may be seen as a positive attempt to confront the normative confusion of China in the Taiwanese legal system, particularly in the area of counter-espionage activities.

In accordance with the Communication Act, Taiwan’s national security apparatuses and legal system should cooperate to address with greater agility the dynamic challenges emanating from the Chinese Communist Party (CCP) malign influence operations. With the enactment of this series of legal revisions with respect to national security, which strengthen the authorities’ competency to impose penalties and sanctions on those identified as spies, it is reasonable to predict that the capacity of foreign and cross-border surveillance will be expanded for the purpose of identifying and prosecuting hostile infiltration activities and malign influence operations. As such, it is necessary to consider how to incorporate the Communication Act in the context of these counter-intelligence initiatives.

Yet, Taiwan lacks a specialized and legal command policy-decision making mechanism tasked with intelligence affairs. Unlike the US system, which is equipped with FISA (Foreign Intelligence Surveillance Act) and FISC (Foreign Intelligence Surveillance Court), a legal statute and a judicial body specifically designated to authorize surveillance targeting of those who pose a threat to national security. This may have three implications. First, the absence of a court-reviewed warrant may cause concerns about due process and the invasion of people’s freedom of expression and communication. Second, the statute does not stipulate which authorities and procedures should be followed when cross-border surveillance is exercised, which may cause even greater concerns about the legitimacy and legality of such activities. Third, the current corresponding provisions─for both court-issued and intelligence surveillance—mainly focus on the dimension of data collection, neglecting the subsequent data use once the data has been disseminated or leaked. The subsequent dissemination and combined data use of other personal information could lead to greater human rights infringements, which has been consistently disregarded in a brazen fashion by law making and law enforcement agencies in Taiwan.

The main point: Taiwan is at a digital and legal crossroads between technology, national security, and privacy protection. Closing loopholes in the legal framework for government surveillance in Taiwan is crucial for finding a balance between national security and the rule of law on the one hand, and national security interests on the other.

[1] See Communication Protection and Surveillance Act, available at https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=K0060044.

[2] Article 1 of the Communication Protection and Surveillance Act.

[3] Article 5 of the Communication Protection and Surveillance Act.

[4] Article 7 of the Communication Protection and Surveillance Act.

[5] Article 2-1 of the National Security Law.

[6] Article 2-2 of the National Security Law.