Communication surveillance

Legal Basis

• The "Communication Security and Surveillance Act" :The full text of the 34 Articles is promulgated and enacted  on July 14, 1999. After several amendments, Articles 5 and 34 of this Act are amended and promulgated by the Presidenti on April 13, 2016.
• The Enforcement Rules of Communication Security and Surveillance Act:The full text of the 30 Articles is promulgated and enacted by Executive Yuan and Judical Yuan on March 15,2000. After several amendments ,article 3~5,8,16,20,27~30,35,36 are amended and promulgated on June 26,2014 and article 13-1,13-2,16-1,16-2,23-1 are added and enacted on June 29,2014.
• Regulations for Administration of Mobile Broadband Businesses:89 Articles promulgated in full by National Communications Commission（NCC）on May 8,2013.Afer several amendments,additions and deletions, article 77 was amended and promulgated by National Communications Commission on July 12,2016, and enacted on the same date.

Supervision mechanism

• Article 16, Paragraph 2 of the said Act stipulates that "The prosecutor, the judge who issued the interception warrant ex officio or the head of the authority overseeing national intelligence may [also] request that the enforcement agency submit reports at any time." Articles 5 and 6 of the said Act stipulate that supervision of communication surveillance shall be carried out by the prosecuting authority during surveillance and by the court during trial. Article 7 of the said Act provides that such supervision shall be carried out by the authority overseeing national intelligence by assigning staff to the setup organization or by using electronic supervision equipment to supervise the implementation of communication surveillance. In cases with continuing investigation, the court may at any time assign staff to supervise the implementation of communication surveillance by the enforcement agency.
• The Prosecutors Offices of Taiwan High Court and Supreme Court have established an online information database review system with the Bureau for communication surveillance work. Through the said system judges and prosecutors have online access to random checks at any given time.

Questions and Answers on Communication Surveillance

• Q1:    What are the purposes of communication surveillance?
• A1:    Communication surveillance is necessary to ensure national security and maintain social order.

• Q2:    What are the essential conditions for conducting communication surveillance?
• A2: 

1.  Principle of serious offense: The offenses for which the subjects are placed under investigation must be punishable with a minimum of a three-year fixed-term imprisonment as stated in Article 5, Paragraph 1 of the Communication Security and Surveillance Act or conform with other offenses listed in the Article.
2. Necessity: It is necessary for the investigation of cases for which evidence is difficult to obtain or where no other methods for the collection or investigation of evidence is available. In addition, the investigation should conform to the principle of minimal damage or intrusion.
3.  Connection: There is reasonable belief that the content of his/her communication is relevant to the case being investigated.
4. Warrant requirement: Compulsory enforcement under the purview of Code of Criminal Procedure may be carried out by way of an interception warrant issued by the court upon the judge's approval.
5.  Interim surveillance: The enforcement agency is required to submit interim reports for the judge's review with respect to whether or not the interception warrant shall be continued.
6.  Subsequent surveillance: The enforcement authority of communication surveillance cases shall, when the communication surveillance is over, immediately state the name, permanent address or contact address of the person under surveillance. The prosecutor or the authority overseeing national intelligence shall in turn report to the court, so that the person under surveillance may be notified.

• Q3:   What are the respective roles of the authorities involved in communication surveillance operation?
• A3: 

1. Approving authority: An interception order may be given by a judge of the court of instance or the Director of the National Security Bureau.
2. Petition agency: The judicial police authority shall request the prosecutor with jurisdiction to petition to the court for an interception order.
3. Enforcement agency: This refers to the judicial police authority or prosecutor and its enforcement officers who are actually involved in the criminal investigation and are responsible for conducting surveillance and managing supervision.
4. Setup organization: The setup organization is the organization that simply provides the software/hardware components of communication surveillance equipment and has no contact with communication contents.

• Q4:  What are "criminal surveillance" and "intelligence surveillance"?
• A4:  An interception order issued ex officio by the judge following a petition for the communication surveillance of "crimes" referred to in Article 5 of the Communication Security and Surveillance Act shall not exceed 30 days. An interception order issued by the head of the authority overseeing national security i.e. the Director of National Security Bureau following a petition under Article 7 of the Communication Security and Surveillance Act for the purpose of collecting "intelligence" on foreign forces or hostile foreign forces shall not exceed 1 year.

• Q5: What is the role of the Investigation Bureau's Department of Communication Surveillance in communication surveillance operations?
• A5: 

1. The "Department of Communication Surveillance" of the Bureau is the "setup organization" referred to in Article 11 of the Communication Security and Surveillance Act.
2. Pursuant to Article 14 of the Communication Security and Surveillance Act and Article 26 of its Implementation Regulations, professionally-qualified staff of the Bureau's Department of Communication Surveillance are responsible for consulting, discussion, reviewing and confirming with telecommunications companies with respect to the Department's capacity to conduct communication surveillance, following which a communication surveillance setup plan shall be submitted in accordance with administrative procedures for approval by the Executive Yuan, with completion of installation and maintenance of relevant surveillance system in accordance with approved annual budget. Only then may the Department undertake communication surveillance operations requested by judicial police authorities.
3. In the light of the aforesaid, the Bureau's Department of Communication Surveillance functions merely as a professional telecommunication technology unit that serves the respective judicial police authorities. It does not come into contact with the contents of communication under surveillance.