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
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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.
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Pro bono legal team formed
Attorney Lin Yü-t’eng convenes a pro bono team to plan the litigation.
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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.
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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.
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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.
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Complaint filed
The legal team files the complaint with the Taipei High Administrative Court.
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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.
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Second hearing
No one from the Ministry appears in court, drawing criticism that it is brushing aside the plaintiffs’ legal challenge.
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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.
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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.
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Third hearing
With the mandatory replacement policy unchanged, the plaintiffs maintain that the eID requires express authorization in a dedicated statute.
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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.
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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.
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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.
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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.
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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.
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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).
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Leave granted
The Constitutional Court rules that JRF may act as amicus curiae.
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Amicus curiae brief
JRF’s brief carries the arguments developed in the eID case into the wider field of the digital rule of law.
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Supplementary brief
JRF elaborates on informational self-determination, privacy and the constitutional limits on state collection of personal data.
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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.
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Digital Rule of Law Salon
A salon and empowerment workshop for volunteer lawyers covers technology-assisted investigation, digital intermediaries and the eID.
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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.
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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.
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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.
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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.
2023
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