Law in the Internet Society

Fight against government tyranny in privacy right

-- By ChengyuTan - 4 Jan 2021

Last month, Taiwan’s Ministry of Justice tried to introduce a new act “Technology Investigation Act,” which will provide the prosecutors and law enforcement agencies with “high-tech tools” to gather evidence, including using GPS, drone and hacking technic. This proposal is opposed by legal scholars, bar associations and several civil rights groups, forcing the Ministry of Justice to withdraw the proposal. However, the government still asserts that it is necessary to let prosecutors and law enforcement agencies have more advance “weapons” to fight against the emerging digital crimes, and the Ministry of Justice will release a new proposal in the future.

The “Technology Investigation Act”

The Ministry of Justice's proposed act will grant the prosecutors and law enforcement agencies the power to gather evidence directly from suspect's smartphone or other devices by hacking into or install surveillance programs in them. The government allows itself to hack into people's smartphones is a thing that beyond people's imagination. The government should be the one who protects people's freedom of privacy of correspondence, rather than destroys them. So, why the government does that?

Old practice failed

Because of having a dominant influence in the telecom system, the government can easily intercept or monitor the unencrypted vocal signals transmitted via those government own or government-sponsored pipes. However, that practice is not functioning after the vocal signal was replaced by data packets. The government loses its power to decrypt those conversations in a cost-efficient and prompt way. So, maybe the government is only trying to restore its previous power?

Beyond the wiretap

The reason why the smartphone can be called as “smartphone” is that we offer all our information as a tribute, so that we can use all its fancy functions. In other words, it may store our activities, relationships, hobbies and even health information. By hacking into people's smartphones, governments can not only collect the unencrypted conversation that law enforcement agencies desire but also be allowed to access our most private, intimate or embarrassing information and detailed record of daily life. Surveillance is undergone quite a metamorphosis. With these pieces of information, our thought can be analyzed, personality can be modeled and behavior can be predicted. Thus, the proposal basically extends the government's power to a field that it cannot reach before.

The balance

Frankly to say, it may be necessary to allow the government to update its arsenal to fight against changing crimes; however, that does not mean that people's freedom of privacy of correspondence can be sacrificed. We must find a balance between that. In order to keep the balance, reviewing by independent judges is definitely the most impartment. The prosecutors and law enforcement agencies have no power to hack into people's smartphones before they convince the judges and receive the orders from the judge. The proposal did have regulated the judiciary review; however, the proposal also opens a back door for a certain situation, such as in order to prevent imminent threats to people's live, body or property, the prosecutors have the power to order to initiate a hacking action firstly and seek the judge's approval later. The word “imminent threats” has an ambiguous definition, causing a potential risk of abusing powers. Whether an ambiguous word should be used in the article that deprives people's right need to be carefully discussed.

Secondly, the scope of the hacking should be limited. Since the purpose of hacking is to gather a suspect's communications, the function of surveillance programs cannot include other functions. Even it can provide law enforcement agencies with certain help, other suspect's personal information stored in smartphones cannot be the target of the hacking.

Last but not least, any information gathered by illegal hacking actions should be inadmissible to courts. In Taiwan, the criminal code regulates that the admissibility of the evidence obtained by illegal actions shall be determined by balancing the protection of human rights and the preservation of public interests, meaning that the information gathered by illegal hacking actions still has a chance to be accepted by courts. This practice will increase the chance that the law enforcement agencies may try to take a risk in gathering evidence. Therefore, making a special regulation in the proposal to let the illegal hacking information become inadmissible may be a way to keep balance.

What’s next?

The constant experience tells us that every man with power has a tendency to abuse it, until he touches the boundary. It is true that most of people are aware of their freedom of speech or freedom of residence and migration, heritages of our ancestors' fighting, and will fight for them if the government wants to deprive us of those freedoms; however, unfortunately, only part of people are aware of their digital privacy and the most population is still lacking that awareness. One of the helpful ways to increase awareness is to teach children about their privacy rights. Just as we teach children about constitutional rights, we should also introduce privacy right in classrooms. Once they understand the importantness of privacy rights and know how to protect their right, they will start to protect it exactly as our ancestors did hundreds of years before.

But we also need other urgent ways. Following the paths of those legal scholars and groups, all people with privacy rights awareness should speak out against governments expending its power, trying to influence others in a way other than school education. Unless the majority of people learn about privacy right and is willing to fight for it, governments will never stop trying to deprive that from us.

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r3 - 04 Jan 2021 - 14:08:08 - ChengyuTan
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