eID Card Litigation

In 2020 the Ministry of the Interior set out to replace every national identification card in Taiwan with a chip-based digital card, the New eID, without a statute authorizing it. JRF, the Taiwan Association for Human Rights (TAHR) and other civic groups brought nearly 60 members of the public together as co-plaintiffs and asked the Taipei High Administrative Court to stop the rollout. The Executive Yuan suspended the eID in January 2021, and in May 2023 the court found that the program had no proper legal basis.

Court

Taipei High Administrative Court

Case

109-Su-912, judgment of 11 May 2023

Action

Preventive action for an injunction

Plaintiffs

Nearly 60 members of the public, recruited by JRF and TAHR

Counsel

Pro bono legal team convened by Attorney Lin Yü-t’eng, member of the JRF Executive Committee

Outcome

Dismissed on procedural grounds after the Executive Yuan suspended the eID; the judgment held that the 2020 regulations on chip-based ID cards exceeded their statutory authority

Background

The New eID would have replaced the paper national identification card with a card carrying a microchip. The Ministry presented it as a convenience for in-person and online government services. But the card collects, stores, processes and uses personal data in digital form, and each use leaves a digital footprint. That is far more than a change in the format of a card: it bears directly on the right to informational self-determination and the right to privacy.

The Ministry planned to begin nationwide replacement in October 2020. On 31 July 2020 JRF and TAHR announced that they would sue, together with nearly 60 plaintiffs from across Taiwan. The action asked the Taipei High Administrative Court to bar the Ministry from announcing, under Article 59, Paragraph 2 of the Household Registration Act and Article 15 of the Regulations Governing the Comprehensive Replacement of National Identification Cards (issued 19 March 2020), the date on which old-style cards would cease to be valid before the replacement process had been completed.

TAHR led the advocacy campaign. The litigation was handled by a pro bono legal team convened by Attorney Lin Yü-t’eng, a member of the JRF Executive Committee, with JRF providing coordination and administrative support.

The legal issues

1. No clear statutory authorization

Moving from a paper card to a chip-based digital identity changes the identification system itself. Yet the Ministry relied only on the general authorization in Article 52, Paragraph 1 of the Household Registration Act, which provides that the format of the national identification card shall be determined by the Ministry of the Interior, to carry out a reform with a heavy impact on fundamental rights.

The court agreed. It held that the provisions on chip-based ID cards in the 2020 version of the regulations governing the format and issuance of national identification cards clearly exceeded the authority granted by Article 52, Paragraph 1. Issuing an eID requires express provision by statute.

2. Privacy and informational self-determination

Every use of the eID would generate a digital footprint. This amounts to state intrusion into the private sphere and weakens people’s control over their own personal data.

“The eID imposes on individuals a digital identification function capable of generating a large volume of ‘digital footprints’, placing them in a position where they can be profiled in detail, and fundamentally alters the existing identification system …”

3. Weak safeguards and lost public trust

On 18 March 2021 the Control Yuan published an investigation report (110-Nei-Tiao-0010). It found that the Ministry had paid a heavy social cost, including a loss of public trust, in pushing the eID, and called for a thorough review of the legal framework for national identification cards and of the mechanisms for public participation. The problems included:

• no dedicated data protection statute, and no clear limits on how the card could be used;
• pilot counties and cities left without adequate information, with data security concerns unresolved;
• no meaningful public consultation or participation.

What JRF did

Working with TAHR and other groups, JRF pursued the case on four fronts.

Petition to the Control Yuan

On 18 September 2019 JRF and TAHR petitioned the Control Yuan over the procedural and privacy problems raised by the eID. The investigation report that followed in March 2021 is summarized above.

Litigation

The pro bono legal team was formed in February 2020 and filed its complaint on 5 August 2020, seeking an order barring the Ministry from announcing when old ID cards would expire. The court gave judgment on 11 May 2023. It dismissed the action on procedural grounds, as the Executive Yuan had already suspended the program, but stated plainly that the mandatory replacement policy was unlawful. In that sense the litigation achieved what it set out to do.

Legislative research

In April 2020 the legal team asked Chung Hung-pin, formerly a researcher at the Crime Prevention Research Center of the Academy for the Judiciary, to translate Germany’s Act on Identity Cards and Electronic Identification (Personalausweisgesetz) into Chinese. Shao Yun-chung, assistant research fellow at the Institute of European and American Studies, Academia Sinica, reviewed the translation, which was made freely available to the public.

Public advocacy and amicus curiae

From 2020 JRF held press conferences, issued statements and organized seminars. In 2022 the Constitutional Court granted JRF leave to act as amicus curiae in the National Health Insurance Research Database case (Case Hui-Tai-13769), and JRF used its briefs to carry the arguments on privacy, informational self-determination and digital rights developed in the eID case into the wider debate on the digital rule of law.

Timeline

1. 18 Sep 2019

   Petition to the Control Yuan

   JRF and TAHR petition the Control Yuan over the procedural and privacy problems raised by the Ministry’s eID program.

2. Feb 2020

   Pro bono legal team formed

   Attorney Lin Yü-t’eng convenes a pro bono team to plan the litigation.

3. Apr 2020

   German eID statute translated

   Chung Hung-pin translates Germany’s Act on Identity Cards and Electronic Identification, with review by Shao Yun-chung, as groundwork for legislative research. The translation is made freely available.

4. 14 May 2020

   Press conference on forced replacement

   Under the title “Forced eID Replacement Angers the Public: Executive and Legislature Must Answer”, the groups call on the government and the Legislative Yuan to respond to public concerns.

5. 31 Jul 2020

   Lawsuit announced

   At a press conference titled “Say No to Digital ID Cards! Civic Groups Sue the Ministry of the Interior”, the groups announce that nearly 60 plaintiffs will bring a preventive action for an injunction.

6. 5 Aug 2020

   Complaint filed

   The legal team files the complaint with the Taipei High Administrative Court.

7. 2 Nov 2020

   First hearing

   With privacy concerns unresolved, the Ministry presses ahead with a pilot due to start in January. The groups question why it should proceed while the case is pending.

8. 8 Dec 2020

   Second hearing

   No one from the Ministry appears in court, drawing criticism that it is brushing aside the plaintiffs’ legal challenge.

9. Dec 2020

   Three local governments leave the pilot

   New Taipei City, Penghu County and Hsinchu City withdraw from the eID pilot after pressure from the legal team, TAHR, Open Culture Foundation and other groups.

10. 25 Dec 2020

    Press conference in Hsinchu

    “Personal Data as a Prize? Hsinchu Residents Refuse to Be Guinea Pigs for Digital ID Cards” opposes using residents’ personal data for a policy experiment.

11. 5 Jan 2021

    Third hearing

    With the mandatory replacement policy unchanged, the plaintiffs maintain that the eID requires express authorization in a dedicated statute.

12. 18 Jan 2021

    Statement: is the suspension real?

    JRF and other groups ask the government to explain exactly what it means by “completing the legal framework” for the eID.

13. 21 Jan 2021

    Executive Yuan suspends the eID

    At its 3736th meeting the Executive Yuan suspends eID issuance until a dedicated statute is enacted and social consensus is reached: the first concrete result of the litigation and advocacy.

14. 2 Feb 2021

    Fourth hearing

    Because the plan has been suspended rather than abandoned, the plaintiffs argue that the court should still decide the case on the merits.

15. 4 Mar 2021

    Press conference on the missing statute

    The groups point out that the eID still has no clear statutory basis, yet the regulations on ID card photographs have already been sent to the Legislative Yuan.

16. 18 Mar 2021

    Control Yuan report

    Investigation report 110-Nei-Tiao-0010 finds that the Ministry paid a heavy social cost, including a loss of public trust, and calls for a thorough review of the legal framework for national identification cards and of public participation.

17. 24 Feb 2022

    Application to act as amicus curiae

    JRF applies to the Constitutional Court for leave to act as amicus curiae in the National Health Insurance Research Database case (Case Hui-Tai-13769).

18. 8 Mar 2022

    Leave granted

    The Constitutional Court rules that JRF may act as amicus curiae.

19. 18 Mar 2022

    Amicus curiae brief

    JRF’s brief carries the arguments developed in the eID case into the wider field of the digital rule of law.

20. 19 Apr 2022

    Supplementary brief

    JRF elaborates on informational self-determination, privacy and the constitutional limits on state collection of personal data.

21. 20 Aug 2022

    Seminar on the Constitutional Court judgment

    “The Right to Refuse Being ‘Digitized’”, a seminar on digital rule of law and human rights, assesses the Constitutional Court’s judgment in the National Health Insurance Research Database case.

22. 5 Jan 2023

    Digital Rule of Law Salon

    A salon and empowerment workshop for volunteer lawyers covers technology-assisted investigation, digital intermediaries and the eID.

23. 13 Apr 2023

    Oral argument

    The Taipei High Administrative Court hears oral argument. The legal team sets out its case on statutory authorization and the impact on privacy.

24. 21 Apr 2023

    Statement ahead of judgment

    The groups urge the court to act as a democratic safeguard for Taiwan’s identification system and to address the question of unlawfulness directly.

25. 11 May 2023

    Judgment

    Judgment 109-Su-912 dismisses the action for failing to meet procedural requirements, but states that the mandatory eID replacement policy was unlawful and infringed fundamental rights.

26. 12 May 2023

    Joint statement after the judgment

    The case did not become a successful precedent for preventive injunction actions, the groups say, but the court’s finding that the policy was unlawful means the litigation achieved its aim.

Further reading

• Investigation Report 110-Nei-Tiao-0010Control Yuan, 18 March 2021 (in Chinese)
• What the abandoned digital ID card says about Taiwan’s distance from a “digital state”The Reporter (in Chinese)
• Act on Identity Cards and Electronic Identification (Germany)Translated by Chung Hung-pin, reviewed by Shao Yun-chung, June 2020

JRF’s statements, commentary and event records on this case are listed below.

The eID case has run its course for now, but the questions it raised about privacy in a digital state have not gone away. You can support JRF’s work or file a complaint.