Privacy rights | Gov’t proposes new ‘Phone Tapping’ regime with added features

Secretary for Security Wong Sio Chak presented the government’s proposal to change the current legal framework which allows authorities to record and gather information from people while they are being investigated for certain crimes.

The proposal was seconded by the Director of the Judiciary Police (PJ) Sit Chong Meng and is now in its public consultation period. It aims to present, as Wong said, “a response to the new challenges created by the fast development and vulgarization of modern communications technology.”

In his speech, the Secretary also noted that the current laws are obsolete in the face of new crimes,  as these laws also cannot tackle the “more organized, more concerted and more concealed [ways] traditional crimes [have developed].”

The proposal was presented in six sections. This included an analysis of the difficulties of applying the current regime, the protection of fundamental rights, adjustments to the current regime, the content of the new regime, as well as its application and relation to the Penal Code, and the proposed date of enforcement of the new regime.

According to Sit, the most relevant issue authorities identified was how outdated the current law had become. The legal framework is already 21 years old and when established, did not account for the modern communication developments.

“We do not have just phone calls anymore. Most people use other ways to communicate, such as symbols, images, sounds and videos,” the PJ director noted, pointing out that such “new methods” of communication should be included under “communication interception and recording” for criminal investigations.

The PJ director also noted the increase in crimes such as “phone scams, hidden broadcasting stations (for illegal gambling related promotions) as well as terrorism acts, and human trafficking” are new policing challenges.

Sit explained that the principles of the current regime are to be kept.

Investigations and “phone taps” will still require to be ordered and conducted under the supervision of a judge and court order. Those under investigation will retain the right to access the contents collected for their defense.

Of the adjustments made, the government proposed a change to the types of crimes subjected to such measures. These will now include “Crimes associated with Terrorism, Money Laundering, Crimes against the Security of the State, Cybercrimes and related to the violation of privacy through communications.”

Crimes related to smuggling were removed, as they were a type of crime “that does not exist anymore in Macau,” Sit said.

Other changes included the “recording” or collection of information not just related to phone conversations, but also newer communication methods, such as texting, symbols, voice messages and videos, which are to be targeted as “material proof.”

There were also proposed changes to article 172 of the Penal Code, regarding methods of intercepting and recording information from these new methods of communication.

The time allowed for certain “surveillance” to occur was also defined. Previously, no maximum period had been established, however, the new law proposes a maximum three-month period, before being up for renewal by order of a judge for similar periods.

A total new change to the law is the fact that both data owners and service providers (such as telecommunications companies) can now be accountable for failing to co-operate with authorities when providing communications contents upon request, and failing to keep the records stored.

The proposed bill includes a penalty of up to two years of imprisonment or 240 days of fine for data owners. Service providers may be targeted with the sanction equivalent to a fine of MOP20,000 to MOP200,000 if they are a person, and MOP150,000 to MOP500,000 if they are a company. The PJ will have jurisdiction over this topic and be responsible for management.

The government is also proposing that the law should be enforced 90 days after its publication, establishing a one-year transition period for operators and service provider to comply.

The document has been in public consultation for 45 days and until November 9, opinions can be sent to the PJ by letter, via the official PJ website and through the government portal.

‘To update the laws is a responsibility of the government’

On the sidelines of the presentation of the new regime for interception and protection of communications, Secretary for Security Wong Sio Chak said: “to update the legal regimes is a responsibility of the government and if [the government] was not doing such work it should be failing.”

Wong was replying to criticisms that the constant changing and enforcing of stricter legal regimes was restraining the liberty of the citizens and making every common citizen out to be a criminal.

In his reply, Wong noted that “the fulfillment of [legal] obligations is an indicator of a democratic and rule-of-law-based [territory].” He also noted that law updates are being made by all other secretariats to improve and respond to social challenges. RM