COR Point 71 Right to Privacy (ICCPR Article 17)
Point 71 of the Concluding Observations and Recommendations by the Experts expressed two concerns over communication monitoring: (1) the excessively high number of applications for communications monitoring and the high rate of approval gives rise to concerns of misuse of such monitoring; and, (2) the existing process of judicial oversight may not be sufficient to discover cases of misuse and channels with wider access are needed to accept complaints of misuse.
Although communications monitoring is a measure of last resort in investigations, applications by prosecutors in recent years for communication monitoring have continued to be high. According to data collected by the Judicial Yuan for 2015, courts received 22,770 applications for monitoring for a total of nearly 30,000 lines, a figure which is over 100 or even nearly 1,000 times levels in countries such as the United States or Japan. The persistence of this high number of applications combined with the relationship between communications monitoring with no clear beginning or end and “convictions” leads to the inability of society to avoid anxiety over the misuse of communications monitoring and also poses the possibility of substantially influencing court trials.
In addition, the National Security Bureau (NSB), the intelligence agency responsible for carrying out communications monitoring, has to the present date failed to fulfil its obligation to disclose statistics on communication monitoring. The reason lies in the fact that the draft “Intelligence Surveillance Act” which is to be used to regulate the NSB, was under discussion in the Legislative Yuan for nearly two years, but had not yet entered the actual legislative agenda before the end of the Eight Legislative Yuan in December 2015. In a meeting on October 13, 2015, the NSB cited the claim that the Communication Security and Surveillance Act was still in need of revision in order to continue to delay the legislative process for the former draft law. The NSB seems willing to allow most communications and data monitoring in intelligence surveillance to continue behind a black curtain, thus adding to the sense of distrust among citizens.
Given that concern over such surveillance has not declined, the limitation and unclear effectiveness of channels for redress only adds to citizen anxiety. Since revisions in the Communication Security and Surveillance Act were enacted and the right to file interlocutory appeals was added to Articles 404 and 416 of the Code of Criminal Procedure on January 29, 2014, there have been only nine cases of such appeals, all of which were rejected by various branches of the Taiwan High Court.
In summary, we recommend that courts should carry out substantive review of applications for communications monitoring in order to reduce the abuse of such applications by prosecutors and police. Moreover, the Legislative Yuan should complete the enactment of an Intelligence Surveillance Act to supervise national security and intelligence agencies and demand the regular disclosure of related information on communications surveillance.