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Fight against government tyranny in privacy right | |
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< | -- By ChengyuTan - 20 Nov 2020 | >
> | -- 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” | |
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< | The Ministry of Justice's proposed act will grant the prosecutors and law enforcement agencies the power to: 1) using drones to keep the suspect under surveillance, identifying the suspect's smartphone or smart car to locate his position and even installing a GPS signal sender to trace the suspect's path; and 2) gathering evidence directly from suspect's smartphone or other devices by hacking into or install surveillance programs in them. It is very disputed whether law enforcement agencies can use these new tools to help their investigation, and how to practice is also in a “wild-west.” In fact, law enforcement agencies in Taiwan frequently used part one's tools during the investigations, until the Supreme Court decided that installing a GPS signal sender on the suspect's car to trace his path would commit the Offenses Against Privacy and an officer was found guilty for that. Thus, it is not so that surprised that the government is trying to legitimize those part one tools. However, it is beyond people's imagination that the government is attempting to ignore the people's freedom of privacy of correspondence and empower itself by allowing itself to hack into people's smartphones. So, why the government does that? | >
> | 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? | | | | |
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< | Restore its previous ability only? | >
> | Old practice failed | | | | |
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< | Tracing back to the last century, people's communications largely depended on the telecom system. The unencrypted vocal signals were transmitted to every part of the world via those government own or government-sponsored pipes. Under this circumstance, intercepting or monitoring communications was always an easy thing for the government. However, because of the development of the internet and instant message software, the vocal signal was replaced by data packets. The communication was split into dozens of data packets and encrypted at the beginning. As a result, even the government is still controlling the pipes and able to collect those data packets, the contents she collected are only some meaningless codes. The government cannot decrypt those packets cost-efficient and in a prompt way. The proposed act will allow law enforcement agencies to gather the unencrypted communication from senders' or decrypted communication from receivers' smartphones promptly and directly, restoring the accessibility of all communication made by people, just as the thing she previously could do. Thus, some supporters bring up an interesting point: “the government is merely trying to restore its ability to detect crimes. And to keep public safety, we should support the government's proposal.” However, disregard the rightfulness of the wiretap, can we simply see it as a replacement for the traditional wiretap and support its proposal? I don't think so. | >
> | 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 | |
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< | 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. That is the field that a traditional wiretap can definitely never reach. So, unsurprisingly, governments will not only try to restore their crime detection ability but also camouflage their intention of extending the power. | >
> | 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. | | | | |
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< | What’s next? | >
> | 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. | | | | |
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< | The constant experience tells us that every man with power has a tendency to abuse it, until he touches the boundary. And the boundary setting is not a gift but a conquest from a long-time fight with Lords, Kings and, now, governments. We should not narrow the boundary ourselves, just as our ancestors did not give up their freedoms but to fight for that. Unlike the age that our ancestors need to sacrifice their lives for fighting against governments, we can have other civil ways to resist government tyranny. Based on the ending of the “Technology Investigation Act” proposal, I would say one possible approach would be to launch people's awareness, then to increase the political pressure on the government. But I have to say, only part of people are aware of their digital privacy and the most population is still lacking that awareness. | >
> | 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? | | | | |
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< | Of course, 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 right 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 right 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. | >
> | 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. | | | | |
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Like WanTingHuangSecondEssay, I think this is a draft of a piece of public advocacy, for the general reader in Taiwan. Your closer focus on the investigative technology proposal makes it easier for you to get the level of detail right, which I think you've done. In the US context, which we'll discuss in the spring, the Fourth Amendment's focus on independent judicial supervision, through the issuance and supervision of search warrants makes some of the issues easier. Offensive cyber-operations against suspects, for example, involving intrusions on personal premises or devices will be much harder for police to employ when they are first required to convince an independent judiciary that these steps are under constitutional limitation. Congress will not specifically authorize such measures when it can leave the matter to the constitutional domain of the judges. You might want to consider the comparison of the two legal systems as a way to explain how the new problems are resolved in the two constitutional orders. Revisiting this draft after we have discussed the Fourth Amendment issues extensively in next semester's course might be a good idea. | >
> | 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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< | For now, I think the best route to improvement is to push more on the argument that "catching up" is a valid rationale. If every arms race between criminals and government is resolved by taking liberties away from the people who are neither, it's obvious that over time all civil liberties are eroded. This is the outgrowth of any analysis that treats the problem as a confrontation between right and wrong, ignoring the predominant interest, which in any democracy is the peoples' concern for their right of self-government and preservation of civil liberty. | | |
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