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Summary

Under Taiwanese law, an interception warrant generally needs to be sought by a prosecutor upon request by the judicial police authorities and issued by a court before interception can commence. The intelligence agency, however, does not appear to need a warrant from the court when intercepting the communications of foreign governments or cross-border terrorist organizations for national security purposes.

Although the law does not specifically address government access to encrypted communications, it generally requires telecommunications companies to equip their hardware and software “with functions that can cooperate with interception” and to provide “interfacing devices” in assisting government surveillance of communications.

Surveillance of Communications

In Taiwan, government surveillance of communications and the legal requirements of telecommunications companies in assisting such surveillance are regulated by the 1999 Communications Protection and Surveillance Act, as amended in January 2014 (Surveillance Act). [1]

“Communications” under the Surveillance Act include telecommunications, emails, letters, speeches not made though telecommunications, and face-to-face conversations. [2] The term “telecommunications” refers to “utilizing wired or wireless telecommunications equipment to send, store, transmit, or receive information.” [3]

A. Interception Warrant Issued by Court

In general, an interception warrant is sought by the prosecutor upon request by the judicial police authorities and issued by a court. Such an interception must be for the purpose of investigating the specific crimes set forth by the Surveillance Act, which include all crimes punishable by a minimum of a three-year, fixed-term imprisonment. There must be sufficient evidence that the accused or the suspect is involved in such a crime and that national security or the economic or social order are severely endangered. In addition, there must be a reasonable belief that the content of the communications subject to surveillance is relevant to the case being investigated, and that it is difficult or impossible to collect or investigate the evidence by other means. [4]

Under urgent situations in investigating certain offenses, however, the prosecutor may “verbally inform” the enforcement authority to start intercepting communications and apply for the interception warrant from the court within twenty-four hours afterward. The court must issue the warrant within forty-eight hours, or otherwise the interception must be ended. [5]

B. Interception Warrant Issued by Head of Intelligence Agency

In intercepting the communications of foreign governments and cross-border terrorist organizations for national security purposes, the intelligence agency does not appear to need an interception warrant from the court. Under such circumstances, the head of the national intelligence agency, the National Security Bureau, is able to issue the interception warrant. [6]

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II. Obligations of Telecommunications Companies

The Surveillance Act does not specifically address encrypted communications. The Act generally requires telecommunications companies to provide facilities and personnel as needed to assist government surveillance of communications. [7] Such obligations to assist specifically include equipping their hardware and software “with functions that can cooperate with interception” and providing “spaces, electricity, and relevant interfacing devices,” pursuant to the implementation measures of the Surveillance Act. [8]

Moreover, telecommunications operators are required by the Surveillance Act to assist law enforcement agencies in setting up and maintaining systems used for surveillance purposes. The obligation is limited to what is “technologically and economically reasonable” at the time of setting up the system and “should not exceed expected possibilities.” [9]

A failure to fulfill the obligations of assisting surveillance is punishable by a fine of 500,000–2,500,000 New Taiwan Dollars (about US$15,500–$77,000), an additional accumulative daily fine, and revocation of licenses. [10]

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III. Conclusion

Although the Taiwanese Surveillance Act does not specifically address government access to encrypted communications, the legal obligations of telecommunications companies in assisting government surveillance may include enabling the decryption of encrypted communications.

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Prepared by Laney Zhang
Senior Foreign Law Specialist
May 2016


[1] 通訊保障及監察法 [Communication Protection and Surveillance Act] (Surveillance Act) (promulgated July 14, 1999, amended Jan. 29, 2014), art. 5, Laws and Regulations Database of the Republic of China,http://law.moj.gov.tw/LawClass/LawAll.aspx?PCode=K0060044,archived at https://perma.cc/LRH5-4PXZ, English translation available athttp://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=K0060044, archived at https://perma.cc/3C86-73PW.

[2] Surveillance Act art. 3; 通訊保障及監察法施行細則 [Implementation Measures of the Communication Protection and Surveillance Act] (Implementation Measures) (Mar. 15, 2000, amended June 26, 2014), art. 2,http://law.moj. gov.tw/LawClass/LawAll_print.aspx?PCode=K0060053, archived at https://perma.cc/JJ6M-45V9.

[3] Surveillance Act art. 3.

[4] Id . art. 5.

[5] Id . art. 6.

[6] Id . arts. 7 & 8; Implementation Measures art. 9.

[7] Surveillance Act art. 14.

[8] Implementation Measures art. 26.

[9] Surveillance Act art. 14.

[10] Id. art. 31.

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Last Updated: 10/01/2016