The Thai police have been notorious for their use of torture to force confessions and the arrest of scapegoats. The two Myanmar suspects accused of killing two British backpackers on Thailand’s Koh Tao Island are good examples. In the restive Deep South, lawyers say that security officers regularly torture insurgent suspects to get confessions since the Thai police do not have enough evidence to issue arrest warrants by normal means. The Thai police are now aiming to optimize investigations by pushing for a law which will allow police from all divisions to intercept suspects’ communications. However, experts say the bill could ironically end up aggravating police abuses.

The attempt to arm the Thai police with the authority to intercept the communications of criminal suspects is in the proposed amendment of the 1934 Criminal Procedure Code (CPC) . At this point, the cabinet has already approved the proposal, which is now under the consideration of the Council of State before being sent to the National Legislative Assembly (NLA) for legislation.   

Permission to allow the police to intercept communications is proposed in Article 131/2 of the new CPC draft. In short, this Article of the new draft states that the police can ask for permission from the courts to intercept the communications of anyone suspected of committing or preparing to commit a crime related to national security or public morale, including all crimes where it is difficult to find evidence. The Article, however, also states that the interception can only be done under court supervision and the police are obligated to send regular reports on the interception process which cannot last beyond 70 days.

An unofficial translation of Article 131/2 of the new CPC draft:

Article 131/2: If in a case, there are suspicious circumstances indicating that individuals are preparing or conspiring to commit crimes or cooperating in, associating with, being involved in, and supporting crimes against national security and the laws related to stability and public morale, which appear to be perpetrated through organized crime, or complex crimes where it is difficult to gather evidence, the investigating officers may request the court with jurisdiction over the specific locality to authorize permission to intercept phone communications, financial information, electronic information, or any information sources relevant to the crimes and suspects. The information gathered from the communication interception can only be used as evidence in court proceedings against the suspects of criminal cases.

If certain criminal cases are complex beyond the normal procedures of gathering evidence, summoning suspects, or issuing court warrants, the court alone can authorize permission to act in accordance with the first paragraph for up to 15 days each time for a total period not exceeding 70 days. During the interception period, the court can issue orders to all relevant personnel to cooperate with the process and the police must submit reports on the interception to the court every 15 days.

Is interception necessary?

According to Pol Col Siriphon Kusonsinwut of the Criminal Affairs and Litigation Division of the Royal Thai Police, who is the key person behind the draft CPC amendment, after the adoption of the 1997 Constitution, which gave more protection to criminal suspects, the police were left to operate with very limited human and technical resources. Therefore, to cope with the complexity of crimes in the digital age, the amendment of the CPC to include the authority to intercept communications of suspects will improve the efficiency of the Thai police.

“The police could not do much besides summoning and issuing arrest warrants. If the suspects do not cooperate with the investigation and the police cannot gather enough evidence in time, the cases are usually dismissed,” said Siriphon at a ‘Technology and Society’ seminar organized by Thai Netizen, an advocacy group promoting internet freedom and online privacy, and the Economics Faculty of Thammasat University, held at Thammasat University in Bangkok on 22 December 2014.

He added that if this bill is passed, it will help redeem the tainted image of the Thai police, who allegedly torture suspects during detention to get information to make up for the lack of resources. Moreover, since the bill to allow interception will speed up this phase of criminal procedure, the losses of crime victims will then be compensated quickly as well.

When asked whether this law will give excessive power to the police to deprive basic rights to privacy without sufficient justification, Siriphon told Prachatai that there should be no problem because the draft is written clearly so that the method can be applied to only certain crimes and there is a good checks and balance system for interception.  

“The criminal cases where investigation by interception procedures would be permitted must be serious enough to carry a penalty over three years of imprisonment. Moreover, only a chief judge can authorize interception permission and if the police officers are found to be abusing the interception procedures they can receive up to ten years in jail as penalty,” said Siriphon.

In other countries, such as in the United States, United Kingdom, and Germany, police officers are capable of intercepting the communications of criminal suspects under the supervision of the court in accordance to the Criminal Procedure Code of the three countries. Therefore, communications interception is not as controversial as it may sound.

In his blog, Siriphon pointed out that the interception law in the new CPC draft will be modeled after the interception laws in the CPCs of these three countries, especially that of the United States.    

Although Siriphon made it clear that communication interception is not a viable tool for the police to use in investigating simple criminal cases, the Department of Special Investigation (DSI) already has the authority to request the court to approve interception requests in cases falling under the DSI’s responsibility. According to the 1998 Anti-Money Laundering Act, the 2004 Special Case Investigation Act, the 1976 Narcotics Control Act, and the 1914 Martial Law Act, the court can authorize permission to intercept communications of criminal suspects of crimes related to the all the acts mentioned. Therefore, one might ask why the police still need to amend the 1934 CPC to have extra authority to intercept communications.

For Kanathip Thongraweewong, a privacy law academic and an Associate Professor at St. John’s University in Bangkok, although the proposed interception law is modeled after that of the US and the UK and has the potential to optimize police operations, several loopholes can be spotted in the draft.

Lack of Transparency  

First, Kanathip argued that although the proposed interception law seems to incorporate judicial oversight of the interception procedures before and after the interception warrant is permitted, these is no mechanism to ensure ‘public oversight’ to keep the interception procedures in check.

According to International Principles on the Application of Human Rights to Communications Surveillance, independent oversight mechanisms should be established to ensure transparency and accountability of the interception of communications.

In other words, there is no mechanism that could make sure that the police will not end up abusing the criminal suspects’ basic rights beyond the court’s authorization during the interception procedures.    

“Although one might argue that public oversight can affect the efficacy of the interception procedures, the lack of it can result in the leakage of information on suspects or third persons and other abuses by the police as well,” said Kanathip.

Jurisdiction overlap

Secondly, he pointed out that there are already laws that make it possible for the DSI to request interception permission from the court for special criminal cases under different conditions.  Would there be any “overlap” or “redundancy” in the application of these laws in the interception processes? Kanathip asked.

To put it in other words, if criminal suspects can be prosecuted under more than one law, which law should the court rely on to authorize interception procedures, the normal interception permission for complex crimes under the new CPC bill or the one for special cases falling under the authority of the DSI under the current CPC?  

“What would happen to certain offences that can be prosecuted by several laws? For example, criminal defamation offences or offences against national security from the importation of false or illegal contents into a computer system?” said the privacy law academic.

According to US law, pre-conditions and procedures of communication interception are clearly and elaborately laid out for specific circumstances, such as in cases of Presidential assassinations, kidnapping, and assault (Section 1751), interference with commerce by threats or violence (Section 1951), and interstate and foreign travel or invalid transportation of racketeering enterprises (Section 1952) of the United States 1968 Omnibus Crime Control and Safe Streets Act. However, the proposed interception law in the new CPC draft of Thailand has not yet made this as sufficiently clear, Kanathip pointed out.

In the 1968 Omnibus Crime Control and Safe Street Act, Section 2516 clearly sets the prerequisites of communication interception, that it can only be permitted in offenses punishable by death or by imprisonment for more than one year. Moreover, only the Attorney General or Assistant Attorney General with the approval from a Federal Judge can grant permission to intercept communications in respect to other sections applied to specific crimes. The Act also lays out in great detail conditions on the disclosure and usage of information obtained from communication interception and the procedures for tapping the communication of criminal suspects in Sections 2517 and 2518 respectively.

Breach of privacy without the notion of basic privacy protection   

Finally, Kanathip added that unlike other countries where interception is allowed, such as the US and the UK, Thailand does not in fact even have a basic data protection law. Therefore, making interception possible without having a law to protect private data can aggravate the unlimited abuse of rights to privacy by the authorities.

To make sure that the interception bill will not become a new tool for abuse by the authorities to install widespread public surveillance, Thailand should at the very least first establish a basic data protection and privacy protection law.

Moreover, Kanathip mentioned that if the US CPC is proposed as a model for the interception bill, Thai lawmakers should not simply pick certain useful parts of the US law as they like, but should borrow the entire structure. This is to ensure that the Thai CPC amendment would be extensive enough to optimize police operations while at the same time guaranteeing basic protection of suspects’ rights to privacy.        

“If interception is necessary for the investigation of crimes and the US laws are proposed as a model for amending Thai law, only one or two sections as proposed are not sufficient,” said the privacy law academic.  

He recommended that the new law should be structured like the US Omnibus Crime Control Act. First and foremost it should be stated as a basic rule that interception of private data is prohibited. Then warranted interception is allowed as an exception for complex crimes.

“In addition, the definition of related terms, such as ‘interception,’ ‘data,’ ‘oral communication,’ and ‘electronic device,’ should be clear. The types of crime that can be subject to interception should also be clearly identified. This is because the laws that limit the right to privacy of people are only exceptions and such limitations should be clear and transparent,” added the privacy law expert.