ALTON: National Assembly should be starting point before government can monitor electronic communication in Nigeria
We are the Association of Licensed Telecom Operators of Nigeria; the umbrella body of licensed providers of telecommunication services in Nigeria.
The major objective of our Association is to foster inter-network cooperation and industry harmony amongst all the Telecom operators, with the Regulator, Government agencies, as well as provide a platform for industry/stakeholders engagement and collaboration, for the advancement of the Nigerian telecommunications market.
The review of Lawful intercept draft policy is quite relevant and in line with our objectuves to protect the intrest of our members and those of our subscribers.
1. BACK GROUND
What is Lawful interception (LI)?
The International Telecommunication UNion (ITU) describes Lawful Intercept (LI) as the lawfully authorized interception and monitoring of telecommunications (voice and data communications) to obtain the forensics necessary for pursuing wrongdoers pursuant to an order of a government body.
Interception may take any of several forms, such as:
1. The live interception of communications (“listening in” to actual conversations real time)
2. Access to audio recordings of previous conversations
3. Access to communications records (CDRs, etc.)
4. Access to location information (pinpointing presence of the subject) etc.
International Best Practice
For interception to be lawful, it must be conducted in accordance with national law, following due process after receiving proper authorization from competent authorities.
How is the Telecommunication Industry involved?
The interception of communications evidences the critical role of the Telecommunication Industry as a key player/enabler of LI due to its ownership of the telecommunication infrastructure and platform required to effect interceptions.
By virtue of the Nigerian Communications Act (NCA) 2003 telecommunications providers are under obligation to implement technical capabilities for LI – to enable national security and law enforcement agencies to exercise their authority to intercept communications
2. LAWFUL INTERCEPT (LI) IN NIGERIA
The Nigerian Constitution
Permit me to place on record, that the right to privacy of Communications is a fundamental human right which cannot be abridged without lawful justification.
Section 37 of the Nigeria Constitution therefore provides for the protection of the privacy of all Nigerian citizens and their homes, correspondence, telephone conversations and telegraphic communications.
Other than this general provision, the Constitution makes no provision for the manner in which citizens’ privacy is to be protected or guaranteed.
However, the protection and guarantee afforded by Section 37 is not absolute, and under Section 45(1) is subject to any law enacted by the National Assembly in respect of national security, defence, public safety or public order.
Other Laws such as the Freedom of Information Act, 2011 prohibits the disclosure of certain information, such as personal information of citizens (i.e., any official information held about any person), except in the circumstances specified under the Act.
“Information” for this purpose includes any records, documents and information stored in any form, including written, electronic, visual images, sound and audio recordings.
Currently, Nigeria has no specific law governing the interception of communications.
Two draft Bills are pending before the National Assembly, namely:
· The Interception and Monitoring Bill 2009 (Senate Bill), and
· The Telecommunications Facilities (Lawful Interception of Information) Bill 2010 (House of Reps).
The Nigerian Communications Act (NCA) mandates all telecoms operators to make their systems intercept-capable. The NCA also authorizes NCC to prescribe technical specifications for implementation (see Sections 146, 147 and 147 of the NCA).
Based on these provisions, the NCC has commenced efforts leading to the enactment of a Lawful Interception Regulations. This can be obtained from the NCC website: http://ncc.gov.ng/index.php?option=com_content&view=article&id=74&Itemid=89
The NCC Draft Lawful Interception Regulations seeks to implement LI along the following lines:
· The interception of telecommunications by a party/parties to a communication with the consent of the other party, or
· Interception by a law enforcement agency subject to and in accordance with a warrant duly issued by a Judge of the Federal High Court for the purpose of investigating a matter where there is no other lawful means of investigating the matter.
· Interception in a manner that ensures access to necessary subscriber and other information, without unreasonably impairing: the privacy of individuals; the provision of telecommunications services to Nigerian citizens; or the competitiveness of the Nigerian telecommunications industry.
These and other provisions are designed to protect citizens from abuse of the powers of lawful interception.
3. KEY CONCERNS
3.1 The Absence of an Enabling law
Given that the Right to Privacy is a constitutionally protected right, it is critical that a properly enacted Bill of the National Assembly be enacted to guide implementation.
The NCC Regulations merely prescribe procedures.
In trying to fill the gap, the NCC’s draft Regulations has sought to impose obligations on parties who are not ordinarily subject to its jurisdiction, such as Judges and Law Enforcement Agencies.
3.2 Inadequate Safeguards to Protect the Rights of the Citizens
The right of Law Enforcement Agencies to secure access to communications in the national interest must be balanced against the equally important need to protect individual freedoms.
The requisite legal framework must provide sufficient safeguards against abuse and opportunities for redress. There must also be very clear supervisory and reporting provisions.
3.3 Protection for Operators
It is critical that network operators who implement interception in the national interest should be protected against civil and criminal liability in very clear and specific terms.
This further underscores the need for a duly enacted legislation.
Law Enforcement and Security agencies must be duly empowered both in terms of occupational hardware as well as technology hardware and software to perform their statutory responsibilities for the protection of all citizens.
The capacity to legitimately intercept communications of suspected felons and other undesirable elements is a key requirement for Lawful Intercept to succeed.
Such powers for the security agencies are however may be susceptible to abuse.
Also, given the very intrusive nature of such powers and the need to protect the constitutionally guaranteed rights, there must be legally enforceable safeguards.
Experience in the USA (the Verizon cases) has shown that telecoms operators who co-operate with law enforcement agencies in good faith and in the national interest may be subjected to very serious civil and criminal liabilities – we the (operators) should be protected by law.
It is therefore critical that the National Assembly urgently provide a comprehensive legal framework addressing these concerns, this should be the starting point and then the Nigeria Communication Commission (NCC) Regulations merely prescribe procedures.
Currently, in trying to fill the gap, the NCC’s draft Regulations have sought to impose obligations on parties who are not ordinarily subject to its jurisdiction, such as Judges and Law Enforcement Agencies. Therefore, the National Assembly should be the starting point for specific law governing interception of communications.
* Gbenga Adebayo, an Engineer and the Chairman of ALTON, made this presentation at the Joint Action Committee on IT Awareness and Development (JACITAD) Policy Forum on Lawful Interception Regulation held May 14, 2013 in Lagos.