The Supreme Court rendered the 106-Tai-Shang-3788 Criminal Decision of November 30, 2017 (hereinafter, the “Decision”), holding that the use of a tracking device to obtain the location information of a vehicle and its user to ascertain the daily life routine and behavioral patterns of the vehicle user through comparative analysis is a major violation of the privacy of the vehicle user.
According to the facts underlying this Decision, the original trial court held that the Defendant, a master sergeant at Coast Guard Corps 5-2, had installed in the all trucks of the Plaintiff’s company GPS trackers without authorization to ascertain the non-public activity status of the truck users. Therefore, the Defendant was penalized for the offense of deliberately recording non-public activities of others via electromagnetic means in stealthy manners without justification by availing himself of opportunities during the discharge of his responsibility as a civil servant. The prosecutor asserted that the Defendant’s act mentioned above had been engaged to crack down on smuggled cigarettes, and that since the Defendant had followed the required procedure to investigate suspected criminal activities by installing GPS trackers, this was an act of investigation. Therefore, this was indubitably an act of investigation pursuant to laws and regulations under Article 21 of the Criminal Code. Since this was not an act without justification, the prosecutor appealed in the interest of the Defendant.
According to this Decision, an investigation agency which uses GPS trackers can continuously and accurately ascertain the location, movements, speeds, and staying duration of such vehicles and their users around the clock for several days. In addition, the tracking scope is neither constrained by time and space nor limited to public roads. Even when vehicles move into private premises, the location information of a vehicle and its user can still be obtained. In addition, through comparative analysis of massive location information gathered over a long period of time, the daily life routine and behavioral patterns of the vehicle user can also be ascertained. Therefore, this should constitute a major violation of the privacy of the vehicle user. In addition, not only can more information be obtained through GPS trackers in comparison with physical tailing and tracking but also the information so obtained can be recorded and retained for a long period of time, and comprehensive and easy surveillance can be achieved without any likelihood of losing track of the surveillance target. Therefore, the two approaches still are substantively different, and it can hardly be concluded that there would be no privacy since the above information can also be collected through surveillance and tailing. The “electromagnetic records” under Article 315-1 of the Criminal Code are not limited to audiovisual information. Although electromagnetic records of locations, moving directions, movement speeds and staying time about the target as captured by a GPS tracker are not audiovisual information about individuals, this behavior is still an act of “stealthy recording” regulated under this article.
In addition, it was further pointed out in this Decision that under the principle of compulsory measures prescribed by law, compulsory investigation can be conducted only when it is specifically permitted under current laws. In the absence of such laws, violation of personal rights certainly cannot be engaged under the pretext of investigation. It is understood that the investigation agency went against the will of others by illegally installing GPS trackers on their vehicles. Since this was investigation conducted by violating private rights through government authority and would definitely result in continued and comprehensive grasp of the whereabouts of vehicle users, the privacy protected under the Constitution was obviously violated. This certainly fell within the scope of “compulsory investigation” and would be illegal and unpermitted in the absence of legal basis. Without legal authorization and legal justification, the Defendant in this case gathered information such as vehicle locations through GPS trackers in serious violation of the Complainant’s privacy. Since the criteria for “lack of ground” under Article 315-1, Subparagraph 2 of the Criminal Code were still met, the prosecutor’s appeal was rejected and the decision against the Defendant was upheld.