This section responds to Paragraphs 270-271 of the State report, on issues relating to legal protections on the people’s private life. The 2014 amendment to the Communications Security and Surveillance Act originated in September 2014, when then Attorney General Shih-Ming Huang disclosed transcripts of surveillance recordings of DPP’s lead legislator Chien-Ming Ker lobbying Jin-Pyng Wang, then president of the Legislative Yuan. Huang was eventually found guilty of breaching confidentiality by disclosing surveillance transcripts to President Ma. Furthermore, in the same incident, legislator Bi-Ling Kuan later discovered that Legislative Yuan’s telephone switchboard had been tapped, which sparked widespread concerns among legislators and the public on State’s abuse of surveillance. For this reason, the Act was amended and additional relief measures were put in place early the next year.
Since the amendment of the Act on 29 January 2014 and the addition of interlocutory appeals to communications surveillance in Articles 404 and 416 of the Code of Criminal Procedure, only nine appeals were made, and all were without success, were rejected by respective High Courts.
The amended Communications Security and Surveillance Act places strict limits, through retention of judges and nulla poena sine lege, to the circumstances under which judicial organs, the police and State intelligence agencies may apply communications surveillance. However, according to Judicial Yuan’s 2015 annual report, communications surveillance applications the courts received over the course of 2015 numbered 22,770, covering over 30,000 number of lines, which was in fact an increase from that before the amendments, and over hundreds or even one thousand times of such numbers in countries such as Japan or United States. The abuse of surveillance applications by the prosecution and the police has also affected the courts ability to review these applications substantively.
In addition, while Article 16-1 of the Act stipulates that the enforcement authority and supervisory authority for communications surveillance shall prepare an annual report with relevant statistical information, national intelligence agencies are still exempted from this requirement. Also, Judicial Yuan and Ministry of Justice, as the enforcement and supervisory authority, respectively, have each published their respective annual reports, but the report from National Police Agency remains absent, hence the public has no means to review and supervise its practices.
Finally, as the people’s daily activities have expanded into the Internet, besides judicial organs and the police, administrative agencies now also rely on assistance from ISPs to perform their duties. Taiwan Association for Human Rights has initiated the Taiwan Internet Transparency Report since September 2014, with the hope that it would push the government into revealing agencies’ requests to ISPs to provide user personal data and to remove content on the Internet. The first annual report was published at the end of 2015, and regrettably, less than half of the agencies that provided their mandate had produced relevant statistics. Compared to South Korea’s government, which had published such information since 1999, the opaqueness of Taiwan’s government policy makes it difficult for the people to supervise government’s policies relating to the Internet, and reduces the “transparent government” slogan into hollow words. This report suggests that the government could establish a lawful set of procedures for related operations, and proactively publish relevant statistics to ensure the people’s right to be informed, thereby enabling public supervision of the government.
In summary, this report suggests that courts should, to the greatest possible extent, substantively review future requests for communications surveillance orders, in order to keep the amount of requests at a reasonable level. The legislature should urge State intelligence agencies to complete the legislation of the Intelligence Surveillance Act, which would place obligations of transparency on the agencies, and should continue to monitor the statistics, production and release of the agencies’ annual reports. Government agencies that require personal data to be provided by ISPs should proactively tally such requests and publish the statistics periodically.
This section responds to Article 17, Paragraph 272 of the ICCPR State report on search. An incident of great controversy occurred in March 2016 regarding a search without warrant, as prescribed in Article 131-1 of the Code of Criminal Procedure, where a citizen spoke out about his experience of being searched by Military Police personnel for his sale of documents relating to the White Terror on the Internet. The documents, although sensitive in nature, have exceeded the thirty-year confidentiality period. Furthermore, the MP personnel only secured consent through coercion and deception, and did not keep video record of the incident. As a result, the incident, once made public, sparked intense criticism from public opinion. In addition to the call to abolish the mandate for consent search in the Code, many experts and scholars have also placed the cause of this incident on the long lasting leniency by prosecutors and judges in dealing with the use of consent searches. These opinions call for prosecutors and judges to substantively review whether the party is adequately informed to give consent and the genuineness of such consent to search, in order to prevent the repetition of such incident in the future.
Personal Information Protection Act’s Loose Protection on Special Personal Data, and the Act’s Flawed Amendments
This section responds to Paragraphs 273 to 274 of the ICCPR State report. On issues relating to personal data protection, the Personal Information Protection Act was amended twice between 2012 and 2016, on 1 October 2012 and 30 December 2015, respectively. Provisions amended in 2015 have become effective on 15 March 2016, while the effective date of Article 6 governing the protection of special personal data, as amended on 1 October 2012, was delayed over concerns from the agency responsible for the Act. As a result, between 2012 and 2015, special personal data such as “medical records, medical treatment, genetic information, sexual life, health examination and criminal records” are only subject to the same level of protection as regular personal data. Finally, while the provision specifically governing such data became effective following the 2015 amendment, the amended provision prescribed that “when it is necessary for a government agency to perform its legal duties or for a non- government agency to fulfill its legal obligation”, such data may be collected, processed and used without any other circumstantial or legal restrictions. This would undoubtedly increase the people’s level of exposure to the State, and poses an enormous risk of creating a surveillance society.
The Personal Information Protection Act, as amended in 2012, provides the people with the right to request discontinuation of collection, processing or use of personal data. However, given the Ministry of Justice’s lenient interpretations of the Act, and the ambiguity on “de-identification”, the people’s right to self-determination of information has been left unprotected. Since 2012, Taiwan Association for Human Rights have, together with other civil groups and citizens, raised an administrative suit against National Health Insurance Administration (NHIA), with the demand that NHIA not to use NHI data “beyond the purpose of collection” without “consent given by the party” or “proper legislation”. The suit was raised precisely because NHIA had released the people’s NHI data and health records to a third party for study without the people’s consent or legal mandate. According to the Human Subjects Research Act, all studies should obtain the “informed consent” of subjects, and subjects should be able to “withdraw” from studies. However, the NHIA database does not allow anyone to withdraw; in other words, the people are denied the right to refuse to be subjects. The 2015 amendment to the Personal Information Protection Act places the responsibility of de-identification on researchers upon the final release of study, instead of on data providers at the initial transfer, which exposes sensitive personal data to greater risks.
During the Sunflower Movement in March and April 2014, protesters who occupied the Executive Yuan on the night of 23 March were violently cracked down and expelled by a large-scale police force early next morning, which had caused many injuries among the protesters. On 9 April, legislator Mei-Nu Yu revealed that police units in charge of the investigation had requested hospitals provide the list of patients admitted at the night of the incident and the patients’ medical records, in order to cross check the protesters’ identities. This sparked intense criticism from public opinion, which held that the police had blatantly violated the people’s privacy protected by the Personal Information Protection Act. However, Article 6 of the latest version of the Act on the collection, processing and use of special personal data, as amended on 30 December 2015, includes an additional situation in which related agencies are obligated to assist a government agency in performing the latter’s legal duties. Such language will, undoubtedly, significantly increase the possibility of similar future incidents being legitimized.
This section responds to Paragraph 276 of the State report on the issue of human biobanks. Among the biobanks approved, Taiwan Biobank is the largest, which is funded by the government and commissioned to Academia Sinica. The project plans to recruit 200,000 regular people and 100,000 patients and collect data and information on their physical examination, surveys and interviews, and blood and urine samples. Research stations are established at close to thirty medical facilities for data collection and review. However, since the second half of 2015, concerned citizens have noticed that Taiwan Biobank has been recruiting subjects on the Internet with deceptive language or financial incentives, such as providing health examinations, or “Academia Sinica blood and urine test for 500NTD gift certificate”, “500NTD Family Mart or PX Mart gift certificate for blood and urine test on six hours fasting”, “Great news! Academia Sinica is studying chronic diseases”. It was also pointed out that research stations have also been recruiting subjects with methods similar to free health examinations and gift certificates. Upon the media’s coverage of such practices, Ministry of Health and Welfare, the competent authority of the Human Biobank Management Act, did not perform an investigation. This would likely result in the people’s confusion between biobank participation and health examinations, which would render them incapable to correctly assess information regarding the risks to which their genetic privacy is exposed by providing test samples. Medical ethics on recruiting test subjects, and the essence of informed consent are also compromised. This report suggests that the competent authority collect such advertising material and refer them to the biobank’s research ethics committee for investigation. Interactive Internet applications such as LINE should also be banned from being used as a means of recruitment.
This section responds to Paragraph 277 of the State report on the NHI PharmaCloud. Ministry of Health and Welfare’s NHIA started the pilot project on PharmaCloud, which, by the end of 2015, “is employed by 18,853 medical facilities, including 100% of all 503 hospitals, 67% (13,568) of all clinics, which includes 87% (8,923) of all medical clinics, 20% (699) of all Chinese medicine clinics, 60% (3,946) of all dental clinics, 82% (4,766) of all pharmacies, and 3% (16) of all domestic care providers.”
According to NHIA statistics, the use of PharmaCloud and regular NHIA reviews would save as much as 10.4 billion NTD of medication expenses. It is apparent that PharmaCloud is effective, to a degree, in this regard. However, since 99% of Taiwan’s population is insured under NHI, the fact that personal medical records in the PharmaCloud are completely transparent without security mechanism (e.g., informed consent was waived) exposes patients with sensitive diseases such as AIDS, who are not treated equitably under the current medical environment, to enormous amounts of fear and uncertainty. These patients have no way no knowing whether any individual hospital, doctor or administrative staff member would display malicious intent or even refuse to provide treatment altogether. AIDS positives have become the sacrifice to PharmaCloud’s success in big data applications, and some positives are already decreasing the frequency at which they seek treatment. While NHIA is aware of this, it made no attempt to improve privacy protection, only suggesting that concerned patients may lock their NHI cards to prevent medical institution from accessing their records. This ignores the reality that patients would be asked to unlock their NHI cards on the scene in order to continue their treatments.
The concept of medical privacy has always been difficult to promote in Taiwan, hence the fact that PharmaCloud, when it was first established, did not take privacy protection under consideration was regrettable but unsurprising. However, even as the public now recognizes the problem and there is no technical difficulty to include privacy protection mechanism to the system, NHIA makes no attempt to rectify the system or devise other measure to improve it, but continues to promote the effectiveness of PharmaCloud and even plans for its expansion. Such policy, which ignores people’s privacy and medical safety, should definitely be subject to review.
Competent Agencies of the Archives Act should be More Proactive on the Deliberation of Privacy Protection and Human Rights Education
This section responds to Paragraph 279 of the State report on the application for access to government archives. First, although Compensation Foundation for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period has released the information on the number of cases and compensations provided, the agencies taking over the archives, such as Ministry of Culture’s Preparatory Office of the National Human Rights Museum, have not provided further information on the content of these archives, for example the Foundation’s criteria in reviewing past compensation applications and in determining the amount of compensations. Such content does not concern only the rights of victims and their families. Since the compensation is provided using taxpayers’ money, the above criteria should be publicly available for the operation to be accountable.
Second, “to preserve the country’s important historical memory on human rights” does not mean simply keeping the files at a government agency, but should involve participation from the public, for the purposes of “human rights education and collecting, studying, and promoting historical materials on the martial law period”. While the agency keeping the archives has included victim groups, experts and scholars in determining the accessibility for them, concerns from law scholars have already emerged on whether such limited participation complies with Article 22 of the Archives Act. The Ministry of Culture remains inactive in terms of balancing protection of the parties’ privacy and promoting human rights education.
Historical Responsibilities and Recusals due to Conflict of Interest for Government Agencies Related the Archives Act
Whether government agencies may deny an application for access to archives, as prescribed by Article 18 of the Archives Act, has been called into question. Law scholars have noted that Article 18 does not overlap with Article 22 of the Act; hence Article 18 does not apply to open access to archives dating thirty years or more. In addition, National Archives Administration has, with an administrative interpretation, claimed that Article 18 of the Archives Act and sub-paragraph 2, Paragraph 1 of Article 18 of the Freedom of Government Information Law share the same legislative purpose, and the thirty year rule in Article 22 of the Archives Act is limited to “national archives selected for and transferred to the Administration. The Article does not apply to access to other agencies’ archives.” In other words, the Administration allows individual agencies to dictate the level of access for their archives, and thereby approve or deny applications for access. Such practice highlights two issues of the current Archives Act. First, to have individual agencies determine the accessibility of their archives, as prescribed by Article 18 of the Freedom of Government Information Law, neglected the difference between the nature of “political archives” and that of regular ones. The political archives is unique in the sense that it contains records of past human rights violations by the government’s executive and judicial branches. In other words, the agencies that possess political archives may have participated in the violations in the past. Whether such agencies are eligible in determining the accessibility of these archives is thus called into question.
Second, the fact that agencies may grant or deny applications for access indicates that they are in possession of their won archives, which contradicts with the consolidated managing principle prescribed by Article 6 of the Archives Act. Political Archives preserve human rights history of the past, and are valuable for purposes of human rights promotion and studies, and if the management of which is not consolidated and accessibility determined by individual agencies, it could create obstacles for human rights education, promotion and studies.
Therefore, administrative interpretations are insufficient in terms of resolving legal concurrences on archive accessibility. Civil groups have been urging for a piece of designated legislation on the management and preservation of “political archives”. This legislation would also help National Archives Administration in processing applications for access. For example, a permanent committee that involves broader social participation, such as that of human rights workers, scholars, lawyers and victims’ families, could determine archives’ accessibility and balance between freedom of information and victims’ privacy. Social participation and an approach of deliberation in the decision-making process regarding access applications would also lessen the burden of liability for the Administration.
In response to Paragraph 280 on Article 17 of the State Report on the issue of the establishment of Hogan Systems by the Investigation Bureau. In September 2015 and January 2016, Hogan Systems exposed cases regarding investigators privately inquiring about personal data in order to assist in tracking the progress of crime. These two cases are both illegal. They leaked large amounts of personal data. Hogan Systems was established in 1990，to integrate records of personal data held by each government department, and reduce the time necessary for the processing of official documents. However, the disturbing thing is that the categories of data contained in Hogan Systems, and procedures to be followed when applying and using Hogan Systems, as well as the auditing process of Hogan Systems remained opaque. In Article 16 of the Personal Data Protection Act, “the necessity to maintain national security or increase public interest” is key, and provides the legal foundation for Hogan Systems as claimed by the Investigation Bureau. However, due to the opaque status of Hogan Systems, this not only prevents the establishment of safeguards and the necessity of use to be actually inspected, citizens are also unable to ascertain whether or not Hogan Systems contain personal data not regulated by Article 16. We suggested that the Investigation Bureau, MOJ voluntarily announce the categories of data contained in Hogan Systems, procedures of application and use, and the record of use, etc. to increase public trust in this system.
The gender field on our ID clearly indicates the gender (of the ID holder), and this has caused huge trouble for people who have not yet changed their gender identity, or transgender people who are unable to change the gender identity on their ID. This is an invasion of privacy and the body autonomy of transgender people. Taiwan’s government avoids this issue, and provides no mentions in the two National Covenant Reports.
In Taiwan, there is a gender field on identification documents (IDs and the driver’s license)，indicating gender as “male” or “female.” The existence of gender field increases the risk and inconvenience of some transgender people. In Taiwan, there are many opportunities for using ID，such as receiving registered letters at the post office, handling personal banking (such as using a credit card or opening a bank account), etc. When the gender appearance of the party does not match the obvious gender field (based on gender stereotypes) on their identifications, it often causes troubles or forces individuals to come out on the spot. Moreover, under the current household registration system in Taiwan, the alphabet and number on the ID is different for males and females. Many transgender people are forced to come out in the process of job seeking, because of the gender indicated on their ID, or the design of gender identification on the ID. The potential employer has put preconceived prejudice and discrimination aside before transgender persons have the opportunity to show their talent, making it more difficult for them to look for a job. This further affects their livelihood.
We suggest that：
On the new ID which will be completed renewed and issued in 2018 and all other driver’s licenses or identification issued afterwards, the gender field should be moved to a less obvious position and compulsory remarks should also be cancelled for citizens who to choose present or hide the content of the gender field (similar to the current spouse and military service fields). An alternative is to delete the gender field (for example, there is no gender field on the current National Health Insurance IC Card (NHI IC Card)). Moreover, for some transgender people who are unwilling to be restricted by the gender framework on male and female on the premise that the party has expressed her or his wish, they should be allowed to choose a gender option in addition to male and female.
<li><p>Review once again the necessity of distinguishing both genders from each other on the ID，and considering cancelling gender identification.</p></li>This section responds to Paragraph 259 of the ICESCR State report, and Paragraphs 333 and 345 of the ICCPR State report. Taiwan Association for Human Rights’ experience and the status quo in Taiwan indicate that the government has not been promoting “identity of sex-sex partners, while at the same time provide information on public health and social welfare.”63 Sex education programs, websites and institutions provided by the government still focus on gender relations and childbirth health in a hetero-normative manner, and neglected the needs and the very existence of homosexuals.
Development psychology has proven that the awareness of one’s own sexual orientation is part of achieving sexual identity, and the awareness to sex drive is also an important aspect of identity formation (Paplia, 2009)64. On children’s best interest, current international human rights norms are also subjective of children and adolescents, and have stressed that sexual orientation must to be respected and taken into consideration.65 For this reason, to deprive homosexual adolescents of opportunities and resources to sex information and education, that would otherwise expand their contact to and deepen their LGBT-affirmation, constitutes a violation of their rights to the highest attainable standard of health and to education (Article 12 and 13 of ICESCR).
Current regulations governing Internet content rating would give an “R” rating to any content that mentions sexual activities or homosexuality, even information which promotes safe sex, self-protection, AIDS and STDs prevention. For example, Taiwan Association for Human Rights has been asked multiple times by the government, based on individual complaints, to list its web page and links to download homosexual sex education materials as “R”. This not only prohibits homosexual children and adolescents from coming into contact with information on safe sex, but also violates the freedom of expression and to impart information (Article 19 of ICCPR).
Responses and suggestions:
The government should immediately cease to deprive children and adolescent of opportunities and resources to come into contact with information on sex, sex education and homosexual education, and should also cease its inappropriate practices that restricts freedom of expression.
<li><p>Government should avoid over-interpretations of Paragraph 11, Article 49 of the Protection of Children and Youths Welfare and Rights Act, and of other relative content rating regulations<sup>66</sup>. All excessive enforcement measures that automatically rates “information regarding sexual activities and homosexuality” as “R” should cease.</p></li> <li><p>The government should implement Judicial Yuan Interpretation 617 and include information that are “valuable artistically, medically or educationally” with regard to sex and homosexuality into the scope of freedom of expression protection. Such information should be available to homosexual children, adolescents and adults for their use and education.</p></li> <li><p>Government should expel hetero-centric hegemony from its policies, and proactively develop and promote pragmatic and comprehensive sex education, homosexual education and sexual health institutions, which would help in the healthy development of homosexual children and adolescents, and work towards the development of their sexual identity, sexual character and dignity, as well as towards the promotion of the public’s respect of gay rights and fundamental liberties.</p></li> </ol>
- Paragraph 333 of the ICCPR State report.
- Papalia, Diane, Sally Olds, and Ruth Feldman. 2009. P. 395 in their Human Development. New York: McGraw-Hill.
- Paragraph 55, Convention on the Rights of the Child General Comment No. 14: “Children are not a homogeneous group and therefore diversity must be taken into account when assessing their best interests. The identity of the child includes characteristics such as sex, sexual orientation, national origin, religion and beliefs, cultural identity, personality. Although children and young people share basic universal needs, the expression of those needs depends on a wide range of personal, physical, social and cultural aspects, including their evolving capacities. The right of the child to preserve his or her identity is guaranteed by the Convention (art. 8) and must be respected and taken into consideration in the assessment of the child's best interests.”
- Article 49 of the Protection of Children and Youths Welfare and Rights Act is the mandate for Taiwan’s current rating regulations, such as the Motion Picture Act, Regulations on Rating and Management of Gaming Software, Regulations on Rating and Management of Publications and Video Tape Recordings, and Internet content rating mechanism established by the government-commissioned content security institutions.