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EPIC --- Privacy and Human Rights Report 2006

Republic of China (Taiwan)

Constitutional Privacy Framework

Article 12 of the 1946 Republic of China Constitution states, "The people shall have freedom of privacy of correspondence."[5090] Additionally, the Constitution protects many rights that have an impact on privacy, such as free exercise of religion (Article 13) and freedom of association (Article 14).[5091]

Data Protection Framework

The most important statutory privacy provision in Taiwan is the Computer-Processed Personal Data Protection Law, enacted in August 1995.[5092] The Act governs the collection and use of personally identifiable information by government agencies and many areas of the private sector. It requires that "[t]he collection or utilization of personal data shall respect the rights and interests of the principal and such personal data shall be handled in accordance with the principles of honesty and credibility so as not to exceed the scope of the specific purpose."[5093] Individuals have a right of access to and correction of their data, the ability to request cessation of computerized processing and use, and the ability to request deletion of their data. Data flows to countries without privacy laws can be prohibited, and damages can be assessed for violations. The Act also establishes separate principles for eight categories of private institutions: credit information organizations, hospitals, schools, telecommunications businesses, financial businesses, securities businesses, insurance businesses, and mass media, as well as "other enterprises, organizations, or individuals designated by the Ministry of Justice and the central government authorities in charge of concerned end enterprises."[5094]

Numerous scandals involving leaks of personal information from government and private entities to crime syndicates have resulted in calls for lawmakers to strengthen the law.[5095] The Cabinet approved a draft amendment that would significantly increase the maximum penalty for those who release personal data. If approved, violators would face a possibility of five years imprisonment or a fine of TWD one million (~USD 31,700).[5096] The draft also broadens the definition of personal information and the scope of protection, adding medical care, genetic, physical examination, criminal record information and sexual behavior.[5097]

Supervisory Authorities

There is no single privacy oversight body to enforce the Act. The Ministry of Justice enforces the Act for government agencies.[5098] For the private sector, the relevant government agency for that sector enforces compliance.

Wiretapping and Surveillance

Several laws control spying or surveillance by private parties. Article 315 of Taiwan's Criminal Code states that a person who, without reason, opens or conceals a sealed letter, or other sealed document belonging to another, may be punished under the law.[5099] Accounts of voyeurism and scandalous revelations in the media prompted the legislature to strengthen the wording of Article 315 to include the eavesdropping or videotaping of private conversations, moments, or activities for commercial gain.[5100]

The 1996 Telecommunications Law states, "Unauthorized third parties shall not receive, record or use other illegal means to infringe upon the secrets of telecommunications enterprises and telecommunications messages. A telecommunications enterprise should take proper and necessary measures to protect its telecommunications security."[5101] The Act was amended in October 1999 to increase penalties for illegal telephone taps to TWD 1.5 million (~USD 44,000) and up to five years in prison.[5102]

Illegal wiretapping by the government has been a widespread problem in Taiwan for years. Previously, under the martial law-era Telecommunications Surveillance Act and Code of Criminal Procedure, judicial and security authorities simply had to file a written request with a prosecutor's office to wiretap a suspect's telephone calls. In June 1999, the Parliament approved the Communication Protection and Surveillance Act to impose stricter guidelines on when and how wiretaps can be used, although they can still be approved for broad reasons such as "national security" and "social order." The act also requires telecommunications providers to assist law enforcement and sets technical requirements for interception.[5103]

According to the United States State Department, the Taiwan Ministry of Justice (MOJ) and the police use wiretapping as an investigative tool. According to the MOJ prosecution department, the annual number of approved wiretappings has steadily increased from 19,845 in 2004 to 24,117 in 2005, and to 25,556 through November 2006.[5104] In an effort to stem this problem, the MOJ is pushing legislators to transfer wiretap authority from prosecutors to judges.[5105]

The Communication Protection and Surveillance Act also regulates wiretapping by the intelligence services, which previously operated without any supervision. In October 2000, Chin Huei-chu, a People First Party legislator, accused the Military Intelligence Bureau (MIB) of conducting political surveillance domestically. The MIB denied the allegations, saying that all intelligence work was directed solely at mainland China.[5106] Many legislators also claim that the National Security Bureau (NSB), which oversees national law enforcement, routinely monitors the phone conversations of politicians. This charge is also denied by the NSB.[5107] The Ministry of Defense also denied wiretapping politicians’ phone conversations.[5108]

In 2004, the Government Information Office (GIO) issued the Internet Content Rating Regulation, applicable to all Internet access, content, and service providers. Under the new regulation, content providers must post a label for websites inappropriate for persons of certain ages as categorized by law. Platform providers must institute a ratings system and ISPs shall remove offending content or restrict access by minors to that content. The government shall “assist” by monitoring Internet content.[5109]

National Identification Scheme

The government still retains the traditional paper national ID card. However, the Household Registration Law requires citizens over age 14 to submit all 10 fingerprints upon receipt of their renewed national ID cards which the Cabinet will use to establish a national fingerprint bank. The government also introduced the Citizen Digital Certificate system, a voluntary electronic card that allows citizens to engage in online activities such as tax filing, labor insurance issues, seniority and personal retirement program inquiry, personal travel restriction inquiry, health insurance personal data and fine inquiry, electronic motor vehicle & driver information needs, digital household registration copies, ID loss report and household registration office e-net services. As of July 2007, 1.2 million cards have been issued.[5110]

Another heavily criticized scheme is a national health insurance integrated circuit (IC) card system using the national ID number, also compulsory, that stores sensitive personal information (such as ICD-9 code for illness classification) on the patient's health insurance IC card.[5111] Introduced in 2001,[5112] IC cards were issued to 99 percent of citizens by 2004.[5113] The card was initially intended to store only enough information to make patient registration easier, but it now includes "a record of every major illness, injury, organ donation and prescription." Results of diagnostic tests are also stored on the IC card.[5114] Use of the national health insurance IC card at all hospitals and clinics became compulsory in 2004.[5115]

Medical Privacy

Under the HIV Prevention Law, the government can demand that foreigners who have been in Taiwan for more than three months take an HIV test and may deport them if they test positive.[5116] In 2004, Article 71 of the Medical Treatment Law was amended to guarantee patients the right to obtain copies of their medical records upon request. Though hospitals can be fined up to TWD 10,000 (~USD 294) for refusal to comply with the law, many continue to require physician approval before providing patients with copies of their records.[5117]

Radio Frequency Identification

The Ministry of Economic Affairs (MOEA) established a radio frequency identification (RFID) development program in 2003, and hopes to capitalize on potential markets for the technology.[5118] The MOEA also funded a program that developed several RFID sensors to monitor vital statistics of patients and track employee movement in hospitals.[5119] Taiwan also plans to invest more than TWD 32 billion to transform itself into the global leader in creating “life-related technologies,” including RFID, nanotechnology, smart robots and smart living spaces.[5120] Separately the government pledged between TWD 400 million and TWD 700 million per year between 2006 and 2009 to develop the infrastructure for becoming the global leader in producing RFID technology.[5121]

Under the updated Sexual Violation Prevention Law, "high risk" sex offenders are required to wear electronic tags after their release from jail. In an attempt to reduce sex crimes, serial rapists and attempted escapees are required to wear RFID bracelets so that police can monitor movements and verify curfew compliance.[5122]

NGO Advocacy Work

In addition to producing an annual human rights report, the Taiwan Association for Human Rights (TAHR) has campaigned against the many ID card proposals in Taiwan.[5123] In July 2002, TAHR created and coordinated the Personal Information Protection Alliance, which consisted of more than 50 civil societies and non-governmental organizations.[5124] The alliance was formed to protest several government schemes that require citizens to submit sensitive personal data.[5125] Although the alliance was unable to prevent the introduction of the health IC card, it has brought significant attention to the issue using creative protest methods.[5126]

Open Government

In 2005, Taiwan adopted its first freedom of information law. The Freedom of Government Information Law protects the people’s right to know, understand, trust and oversee public affairs and establishes procedures for citizens to request access to government information. The law places the burden on the government to make public its treaties, correspondence with foreign countries, laws, administrative decisions, administrative reports, budgets, research papers, procurement contracts and meeting records. However, information classified as national secrets, intellectual property, and professional and trade secrets will not be publicly available. In addition, information that would compromise a criminal investigation, disrupt government work or invade personal privacy will not be accessible.[5127]

[5090] Constitution of the Republic of China, Adopted by the National Assembly on December 25, 1946, promulgated by the National Government on January 1, 1947, and effective from December 25, 1947, available at <http://www.taiwandocuments.org/constitution01.htm>.
[5091] Id.

[5092] Computer-Processed Personal Data Protection Law of August 11, 1995, available at
<http://www.coe.int/t/e/legal_affairs/legal_co-operation/data_protection/documents/national_laws/Taiwan-CP-DPLaw.pdf> (unofficial translation); official version available at <http://www.dgbas.gov.tw/ct.asp?xItem=10116&ctNode=2286> (in Chinese).
[5093] Id.
[5094] See generally for an overview on the current status of personal data protection in Taiwan, in particular on the inadequacy of the Computer-Processed Personal Data Protection Law, Tyng-Ruey Chuang, "Personal Data Protection in Taiwan: Whose Business?" 53-70 National Policy Quarterly, vol. 2, No. 1 (March 2003), available at <http://www.iis.sinica.edu.tw/~trc/npq2003.pdf> (in Chinese with English abstract).

[5095] See, e.g., Jimmy Chuang, "Ministry Looks to Protect Privacy," Taipei Times, July 2, 2003; "DPP Seeks Tighter Rules on Personal Data," China Post, April 24, 2004.
[5096] Ko Shu-ling, "Change Data-Protection Law: Cabinet," Taipei Times, September 9, 2004, available at <http://www.taipeitimes.com/News/taiwan/archives/2004/09/09/2003202190>.
[5097] The draft resurfaced again in 2005. See “Personal Data Protection Law Passes Preliminary Review,” Council for Economic Planning and Development, May 13, 2005, available at <http://www.cedi.cepd.gov.tw/eng/tnen_info.php?iPath=55&digests_id=618&CediID=3ce50864e9fe727c52dc2cb31613be8a>.

[5098] See generally Ministry of Justice, <http://www.mjib.gov.tw/en/>.

[5099] Republic of China (Taiwan) Criminal Code Art. 315 (amended 2005), available at <http://law.moj.gov.tw/Scripts/Query4B.asp?FullDoc=%A9%D2%A6%B3%B1%F8%A4%E5&Lcode=C0000001> (in Chinese).
[5100] Tsai Ting-I, "Legislators Target Hidden Cameras," Taipei Times, March 12, 2002, available at <http://www.taipeitimes.com/news/2002/03/12/print/0000127325> (publishing video of a Taipei City Council member allegedly engaged in sexual relations with her married lover); Tsai Ting-I, "Legislators Demand Tougher Legislation for Candid Cameras," Taipei Times, March 6, 2002, available at <http://www.taipeitimes.com/news/2002/03/12/print/0000126529> (pornographic videos of unsuspecting females).

[5101] Telecommunications Law (1996).
[5102] Telecommunications Act (amended 2005), available at <http://www.ncc.gov.tw/english/news_detail.aspx?site_content_sn=17&is_history=0&pages=0&sn_f=364>.

[5103] Communication Protection and Surveillance Act (1999), available at <http://www.moj.gov.tw/public/Attachment/moj/office/Communication%20Protection%20Act%20.doc>.

[5104] US Dept. of State, Country Reports on Human Rights Practices Taiwan 2006, available at <http://www.state.gov/g/drl/rls/hrrpt/2006/78770.htm>.
[5105] Sofia Wu, "MOJ Reaffirms Commitment to Tightening Wiretapping Authorization," Central News Agency-Taiwan, March 24, 2005.

[5106] "Military Intelligence Bureau Denies Political Surveillance at Home," British Broadcasting Corporation, October 11, 2000.
[5107] Jimmy Chuang, "NSB Denies Bugging Lawmakers," Taipei Times, April 5, 2002, available at <http://www.taipeitimes.com/news/2002/04/05/print/0000130595>.
[5108] Sofia Wu, “Taiwan’s Defense Ministry Defends Increase in Counterintelligence Budget,” BBC, Sept. 1, 2006.

[5109] Internet Content Ratings Regulations (2004), available at <http://www.gio.gov.tw/ct.asp?xItem=31568&ctNode=4042>.

[5110] Ministry of the Interior, <http://moica.nat.gov.tw/html/en/main.htm>.

[5111] Tyng-Ruey Chuang, "The Health Insurance IC Card System and Personal Data Protection," Liberty Times, August 6, 2002, available at <http://www.libertytimes.com.tw/2002/new/aug/6/today-o1.htm#o4> (in Chinese).
[5112] Chuang Chi-ting, "Paperless Health-cards Unveiled," Taipei Times, November 12, 2001, available at <http://www.taipeitimes.com/news/2001/11/12/print/0000111165>.
[5113] Cecilia Fanchiang, "New IC Health Insurance Card Expected to Offer Many Benefits," Taiwan Journal, January 2, 2005.
[5114] Cecilia Fanchiang, "Private Information to Be Stored on Cards Issued by Health Bureau," Taiwan Journal, January 7, 2005.
[5115] Joy Su, "New Health Cards Become Compulsory Despite Fears," Taipei Times, January 2, 2004.

[5116] Acquired Immunodeficiency Syndrome Prevention Act (1989), available at <http://www.tpde.edu.tw/6/LB003.htm> (in Chinese); <http://www.cdc.gov.tw/WebSite_En/Acts%20and%20Regulations/Act.files/AIDS%20Control%20Act-940205.doc> (in English).
[5117] Joy Su, "Hospitals Slow to Show Records," Taipei Times, June 17, 2004.

[5118] Owen Chu, "Radio Tags Point Way to Potential Market," Taipei Journal, August 6, 2004.
[5119] Owen Chu, "Hospitals Apply RFID to Disease Control," Taiwan Journal, December 10, 2004.
[5120] Lilian Wu, “Government to invest NT $32 billion in ‘life-related’ technology,” Central News Agency, March 2, 2006.
[5121] Y.F. Low, “Gov’t to spend big on RFID infrastructure,” Central News Agency, August 25, 2006.

[5122] "Taiwan to Order Sex Criminals to Wear Electronic Tagging Devices," Agence France-Presse, March 17, 2005.

[5123] Chiting Serena Chuang, "Human Rights Concerns in An Information Society," World Summit on The Information Society Asian Regional Conference, January 13, 2003, available at <http://www.tahr.org.tw/site/english/wsis-chuang.htm>.
[5124] TAHR, Personal Information Protction Alliance, <http://www.tahr.org.tw/index.php/categories/tw/campaigns/privacy/list/> (in Chinese)
[5125] See the Personal Information Protection Alliance Web site <http://www.tahr.org.tw/site/PDPA/2003.03.14.htm> (in Chinese).
[5126] See, e.g. Caroline Hung, "Pro-Privacy Protesters Break Eggs," Taipei Times, May 29, 2004, available at <http://www.taipeitimes.com/News/taiwan/archives/2004/05/29/2003157386>; Joy Su, "New Health Cards Become Compulsory Despite Fears," Taipei Times, January 2, 2004, available at <http://www.taipeitimes.com/News/taiwan/archives/2004/01/02/2003086023>.

[5127] Freedom of Government Information Law (2005), available at <http://law.moj.gov.tw/Eng/Fnews/FnewsContent.asp?msgid=2636&msgType=&keyword=undefined> (in Chinese and English).