國家電訊安全跨境監聽之法理與執行研究

Abstract

1929年美國國務卿史汀生（Henry L. Stimson）說：「君子不窺人隱私。」（Gentlemen do not read each other’s mail.）但其於1939年任羅斯福（Franklin D. Roosevelt, 1982-1945）總統之戰爭部長（as Secretary of War）時，卻說：「情報（監聽），乃必要之惡（Intelligence is a necessary evil.）」。通訊監察蒐情的工作，世界先進的美、英、德、日等國，均訂有專法設置專責機構據以執行。 跨境監聽工作，既是國家必要的情蒐措施之一，反情報工作中的重要一環；卻常被民意輿論質疑，媒體引述操弄的議題。究其主因，乃通訊監察屬重要影響人民權益之事項，必須嚴謹執行，不可過度。換言之，這項工作是界於維護國家安全與尊重人民基本權之間的爭論問題。 以宏觀言，執行跨境監聽有其必要性及重要性；而人權問題更是全球重視的趨勢，我國追求法治國的核心價值。因此，須採「魚與熊掌」兼顧的工作原則，亦即國安與人權均重。按美國審查基本人權標準，將通訊監察列為嚴格審查之類型；執行目的須在追求非常重要的政府利益，手段更須為必要且侵害最小者。故在政策上，是項工作須符法律保留原則、比例原則，通訊監察書的核發要件認定要審慎明確，事後告知等相關配套措施要完備，以使執行的範圍能受控制而不失序，衝擊降至最低。 國防部是一個有體制的機關，軍事情報局依法設置機制，並受令執行跨境監聽作業，於各階段的執行層面中均有嚴密的管制，應無弊端產生之可能，重要的是無執行國內監聽之要件存在。惟就政策執行理論分析，凡事涉重要影響人民權益的事項，通常由制定政策之原機關來負責執行，最能達到預期目標。 民意機關眷注國家電訊安全跨境監聽工作，是件可喜的事；充分代表我國正向人權立國的核心價值邁進，並不自外於重視人權的世界趨勢。殷祈持續關懷其合理合憲性的發展，敦促在重視人權的前提下，確維國家安全。

While former US Secretary of State Henry L. Stimson said in 1929, “Gentlemen do not read each other’s mail”, he also said in 1939 when he served as Secretary of War under President Franklin D. Roosevelt’s administration, “Intelligence (monitoring) is a necessary evil”. Advanced countries such as the U.S., the U.K., Germany, and Japan all have formulated specific laws and established responsible institutions to perform the task of intelligence collection by means of communications monitoring. While cross-border monitoring is one of the necessary intelligence measures for national security and an important link in counter-intelligence tasks, it is often questioned by the public opinion and manipulated to become an issue by the media. The reason for this is that communications monitoring is a matter that significantly affects the rights and interests of the public so it needs to be handled carefully and should not be overdone. In other words, this task is a controversial issue between the maintenance of national security and respect of the basic human rights of the public. Macroscopically speaking, while cross-border monitoring is necessary and important for national security, the issue of human rights is a global trend that is taken seriously by the whole world and the core value of our country in our pursuing to become a law-based state. Therefore, we have to adopt a working principle of “looking after both sides” to give equal weight to national security and human rights. According to the examining criteria for basic human rights adopted in the U.S., communications monitoring is classified into a category that needs strict examination. The purpose of communications monitoring has to be for pursuing important national interests and the methods used have to ensure the minimum impact on human rights. Therefore, strategically, the implementation of communications monitoring has to meet the principles of legal reservation and proportion, the identification of the elements for the issuance of monitoring permit has to be deliberate and specific, and other supporting measures such as post notification have to be well-established, in order to keep the range of implementation under control and minimize its impact on human rights. Under the command of the Ministry of National Defense, the Military Intelligence Bureau has established a mechanism to execute cross-border monitoring by operation of law. The execution of cross-border monitoring is under strict control in various aspects at different stages so there should be no room for abuses. What matters is there exist no elements for domestic monitoring. However, in accordance with theory analysis of policy implementation, in order to achieve the expected goals, all matters that significantly affect the rights and interests of the public should be executed by the original organization that formulated the related policy. It is grateful for the legislative agencies to pay attention to the execution of cross-border monitoring for national security because this clearly indicates that our country is marching toward the core value of a human rights state and is not exclude itself out of the global trend of human rights emphasis. We sincerely hope that the legislative agencies will care for the legality and constitutionality of the development of cross-border monitoring to ensure the national security under the premise that human rights are respected at the same time.