- Non-compliant operators risk N5m fine, licence revocation
By Olubunmi Adeniyi with additional report by Ibrahim Olukotun
Lagos. January 29, 2013. The Federal Government is pushing ahead with its Big Brother plan empowering the National Security Adviser, State Security Service and other security agencies to monitor phone, internet and other electronic communication within Nigeria and beyond.
For broad reasons of safeguarding national security to crime fighting among others, the nation’s security agencies including the National Security Adviser, Police and State Security Service (SSS) are empowered to intercept phone calls, internet and other electronic communication.
This forms the key highlights of the Lawful Interception of Communications Regulations released this month by the Nigerian Communications Commission (NCC), the nation’s telecoms regulator.
The regulation does not pursue wrongdoers alone as communication service providers that refuse to comply with the provisions of the NCC regulation shall be liable to a fine of N5 million; if the offence continues, a daily fine of N.5million and in extreme cases, outright revocation of their operating licence.
The government justifies that the regulation provides an effective means of checkmating security threats, crimes and theft with the move to empower the national security agencies to wiretap citizen’s communications, through interception of telephone conversations, among others.
Nigeria is home to one of Africa’s biggest telecoms market with over 109 million active phone lines at the end of October 2012. The country also boasts a high-growth social media adoption
As of June 2012, Nigeria had the highest number of internet users in Africa with 48,366,176 which is growing by the day. Nigerians on the leading social media, Facebook reached 6,630,200 users at the end of the last quarter 2012 while Twitter was reported to have Nigerians as its third largest users by country.
The draft regulation released by the telecoms regulator and code-named “the Lawful Interception of Communications Regulations” allows the NSA, Police and SSS intercept communications after obtaining a warrant and in some cases without necessarily getting one.
International Telecommunication Union describes lawful interception as lawfully authorized interception and monitoring of telecommunication pursuant to an order of a government body to obtain the forensics necessary to pursue wrongdoers.
Several countries in developed and developing economies are showing more than passing interest in obtaining information and data lawfully for analysis to forestall impending crimes or to prosecute committed crimes. For example, in the United Kingdom the law is known as RIPA (Regulation of Investigatory Powers Act) likewise many other countries.
The NCC regulation provides that: it shall be lawful for any law enforcement agency to intercept communications pursuant to any enactment for the time being in force and these regulations if the interception relates to the use of a communication service provided by a licensee (network operator) to persons in Nigeria; or the interception relates to the use of a communication service provided by a licensee to a person outside Nigeria.
NCC notes that the regulation provides that a licensee (network operator) shall not be liable in any criminal proceedings of any nature for any damage (including punitive damages), loss, cost or expenditure suffered or to be suffered (whether directly or indirectly) for any act or omission done in good faith in the performance of the duty imposed under these regulations.
Under the regulation, the NSA may initiate and request from the licensees, interception of communications without warrant in an emergency that involve immediate danger of death or serious injury to any person, conspiratorial activities threatening national security and conspiratorial activity characteristics of organized crimes.
The NSA is, however, expected to make an application to a judge within 48 hours after the interception has occurred, adding that “If the application is not made, or denied within 48 hours, the interception must terminate immediately and be treated as unlawful.”
Also the network operators are expected to act upon warrant issued by a judge authorizing and requiring the operator to whom it is addressed to comply with the provisions of the warrant, to secure the interception of any communication as described in the warrant.
The regulation also prescribes that the intercepted communication shall be kept confidential by the law enforcement agencies, its content shall only be shared for the purpose of the investigation and in criminal proceedings and in accordance with these regulations.
On the penalty for contravention, the Nigeria’s telecoms regulator discloses that “If a licensee or any of its officers, manager, chief executive officer, secretary or other similar officers of the Licensee required under the regulation fails to comply with the provisions of this regulation such Licensee or its officers shall be liable to a fine of N5, 000,000 and If such an offence is continuing, such a Licensee or officer shall be liable to a daily default penalty of N 500,000.
Also in line with the regulation, the Commission may revoke the license of any licensee for failure to comply with the regulation, while it shall give a prior written notice to the licensee of such revocation, not less than 30 days to the withdrawal of the licence.
“In addition the Commission may institute an action for non-compliance by way of an injunction or a specific performance or any or such other judicial means of enforcing a duty or obligation imposed on a Licensee pursuant to this regulation.”
The regulation stipulates that a warrant is necessary where the issue falls within the interest of national security as directed by the persons listed in regulation, adding that it necessary for the purpose of preventing or investigating a crime, protecting and safeguarding the economic well-being of Nigerians, giving effect to any international mutual assistance agreements and also in the interest of public emergency or public safety.
A judge may only issue a warrant if the judge is satisfied of or believe that any of the matters mentioned above has occurred, is occurring or about to occur; or where interception of communication is the only means of obtaining the information required under the warrant, according to the regulation.
The regulation stresses the significance of securing a warrant which would authorize the relevant law enforcement agency to gain access to any premises, board any vessel, vehicle or aircraft for the purpose of enforcing the warrant.
It also empowers security agencies to install, maintain or remove monitoring device or to intercept or take possession of any communication or to install, maintain or remove a device by means of which any communication can be intercepted for the purpose of the regulations.
The warrant will also authorize the law enforcement agencies do the following: to take possession of and examine any communication, or as the case may be, listen to or make recording of any communication to which the warrant applies; to return any communication that was taken into possession or cause it to be returned to the licensee or the interception subject if such communication or recording of communication is without prejudice to the maintenance of law and order or other compelling national interest; to request the assistance of any person for the purpose of enforcing the warrant.
As noted in the regulation, the interception of telephone communication without a warrant by individuals would be lawful provided one of the parties to the communication has consented to the interception or where the intended recipient of that communication has consented to the interception by another party.
It adds that the act would also be lawful if “done by a person who is a party to a communication, who in the ordinary course of business is required to record or monitor communications; or if it takes place for purposes connected with the provision or operations of a communication service or with the compliance, in relation to that service, or of any enactment relating to the use of communications services in Nigeria.
To guard against abuse of the regulation, NCC says that “no law enforcement agency or any other person who is or was involved in the performance of any function under these regulations, may disclose any information which that person has obtained in the performance of such function except to any other person who of necessity requires it in the performance of his or her function under these regulations or the Act.”
Along this line, “if he or she is a person who of necessity provides the information in the performance of his or her functions under these Regulations or the Act; such information is required in terms of any law or as evidence in any court of law; or to any competent authority which requires it for any criminal investigation or prosecution.”
It adds that “no employee of the licensee may disclose any information which is obtained in the course of duty and which is connected with the performance of any function in terms of these regulations, whether the employee is involved in the performance of that function or not.”