Bug off: Wiretapping isn’t normal practice

Taiwan’s justice minister says she’d have no problem with the government intercepting her phone communications because she has nothing to hide. When the top judicial official says such things, you know you should be very concerned

When caught doing something wrong, first deny any wrongdoing, and when that fails, downplay the significance of the infraction. This has been the Ma Ying-jeou (馬英九) administration’s strategy to deal with the scandal over the Special Investigation Division’s (SID) wiretapping of the Legislative Yuan’s exchange line, which has seriously undermined the government’s reputation and brought public approval rates for Ma into the shameful single-digit category.

After various SID and Ministry of Justice (MOJ) officials were paraded in front of the media and at the legislature, each providing different — and oftentimes contradictory — accounts of the matter, it soon became evident that the public wasn’t buying the rhetoric. A subsequent report by the MOJ, which found nothing more than irregularities and the “accidental” bugging of the legislature’s main telephone line, also failed to convincingly explain why the SID did what it did.

As skepticism mounted, government officials and some members of Ma’s Chinese Nationalist Party (KMT) changed their tactic and endeavored to convince the public that wiretapping is not only a minor intrusion into people’s lives, but a “necessary evil” to combat graft and corruption. No less a figure than Minister of Justice Lo Ying-shay (羅瑩雪) said earlier this week that she wouldn’t mind it terribly if her telephone conversations were monitored, as she has nothing to hide.

That the top judiciary official in a democracy would make such pronouncements should make us pause, for there is nothing banal, routine, or ordinary about the intercept by government agencies of people’s private communications. It’s not OK for the authorities to intrude into other people’s lives, even if they have nothing to hide. Quite the contrary: Although electronic intercepts do play a role in combating corruption and various crimes, they are only permissible as a last resort, and should only be used when every other means — investigation, human sources, and surveillance — have been exhausted and have proven insufficient to accomplish the task.

As it turns out, this author wrote affidavits and federal court warrants for wiretaps in his previous work as an intelligence officer for the Canadian Security Intelligence Service, spending countless hours with in-house lawyers drafting the documents, which then had to be presented to a panel and defended in court. Always, the case had to be made that other means of gathering intelligence on a target were insufficient or had failed to yield results, and furthermore the benefits of the material collected via wiretaps had to be weighed against the cost in terms of intrusiveness. Such powers were granted for a short duration and could only be extended through the renewal of a warrant. In other words, wiretapping was governed by, and only allowable under, rules of proportionality.

There therefore was little room for errors of the type enumerated by the Ma administration and in the MOJ report. One did not, for example, wiretap by accident, or bug a line without knowing exactly who the user was. In fact, affidavits had to detail every person, other than the target, who was likely to use the targeted line or whose conversations were likely to be monitored in the course of the execution. All collateral material gathered had to be deleted immediately. Unless Taiwan uses a much less rigorous system to issue warrants for wiretaps, it would have been impossible for the SID to receive a warrant without having listed all the collateral users of the line being wiretapped, which in this case meant every person working in the legislative building.

That such an outrage could occur in Taiwan today indicates that either the courts are negligent in their approval of warrants granting highly intrusive powers to enforcement agencies, or the SID is truly incompetent. Either way, this is unacceptable and must be remedied with utmost expediency.

Beyond that, such comments as those by Minister Lo, who trivialized the seriousness of government monitoring and missed the point altogether, must be countered with the full weight of the democratic principles that serve as the foundations for the nation’s legal system. In democratic societies, there is nothing banal about the wiretapping of ordinary citizens or government officials, whose right to privacy is enshrined in the law. But then again, this would not be the first time that this administration, especially law-enforcement agencies, sought to mislead Taiwanese about the full extent of their rights. (Photo by the author)