The Nigerian Communications Commission (NCC) is proposing the regulation of interception of calls as part of its mandate. To some, the Draft Lawful Interception of Communications Regulation is good; others see no reason for it. The latter believes that invasion of citizens’ privacy should not be done by regulation but by legislation. LUCAS AJANAKU reports.
It was an interesting debate and the discussants cited relevant laws to back up their arguments.
Former Minister of Federal Capital Territory, Mallam Nasiru el-Rufai, fired the first salvo by making reference to the fourth volume of William Blackstone’s Commentaries on the Laws of England, where eavesdropping was recorded as an offence.
He spoke at a forum organised by a group, JACITAD, to review the Draft Lawful Interception of Communications Regulations of the National Communications Commission (NCC) in Lagos.
In 1769, Blackstone said in Common Law, “Eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet; or are indictable at the session, and punishable by fine and finding of sureties for good behaviour.”
el-Rufai, who said he was one of the architects of the Nigeria Communications Act 2003 that gave legal teeth to the NCC, said: “It is on reliance of and pursuant to sections 70, 72, 146, 147 and 148 that the NCC has issued “The Draft Lawful Interception of Communications Regulations (2013?).”
He said to do justice to the draft regulation, it is important to establish the legitimacy of the regulation and examine its ‘substantive content and language.’ Doing this will involve knowing the constitutional provisions on privacy or otherwise of physical and electronic communications between citizens; conditions the constitution and laws allow the violation of such privacy, if any; whether the legislature, in passing the NCA ‘reasonably’ intended to give the NCC the powers to regulate the interception of private communications, thus enabling the infringement of fundamental rights without specific legislation via an Act of National Assembly.
He added that it was also vital to establish if Sections 70, 72, 146-148 of the NCA granted the NCC the legitimacy to issue and enact the regulations under consideration, adding that if the constitution and NCA empower the NCC to issue the regulation, is fit to protect the privacy of the citizens while at the same time giving law enforcement agents access to citizens’ privacy in public interest.
According to him, the primary duties of any government are internal security, maintenance of law and order and monopoly of coercive power over its territory, while respecting the rights of the citizens, adding that the challenge for any government is to what extent it can tamper with the rights of a few for the good of the many.
“The dilemma for citizens is the extent to which they will give up their individual rights to a leviathan called government in order to be protected in the arrangement Rousseau called a social contract,” he averred, stressing that while citizens are entitled to their dignity and privacy, governments argue that they can protect citizens only if they know what a handful of criminal elements may be up to. But with the rapid development of communications and encryption technologies, side by side with the proliferation of cybercrimes, terrorism and insurgencies, this question has become even more troubling for everyone.
Striking a balance between respecting individual privacy and spying enough on citizens to ensure our collective security is the standard that should be applied to analyse the regulations being proposed, he said.
On the legitimacy of the regulation, he said it contravened the provisions of 1999 constitution of Nigeria. Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 deals with fundamental rights of citizens that are guaranteed against the state. He quoted relevant sections of the constitution, which will be breached if the government unlawfully intercepts communications between citizens. Section 37 is very specific about telephone communications: “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected,” he said, adding that the provision is, however, moderated by Section 45 which states: “(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons.”
He said the NCC has no powers to regulate the subject matter it is seeking to do, Section 70 of NCA 2003 empowers the NCC to make and publish regulations for six classes of issues all of which have to do with technical and economic regulation of the industry, and none to do with citizens’ rights to the privacy of their communications.
“Section 72 merely enables the NCC to review rules and regulations already issued, while sections 146 and 147 refer to technical issues and legal indemnities when licensees are required to assist law enforcement agencies in preventing the commission of crimes. The sections do not obviate the need for an Act of the National Assembly that will ‘authorise interception’ of communications without violating the constitution. Merely mentioning these in Ss. 146-147 does suffice in my humble opinion,” he said.
Director, Government and Regulatory Affairs, Airtel, Osondu Nwokoro, said it is trite that interception of communications interferes with the right to privacy. He said such interference however, is expected to conform to extant international and domestic laws.
On the paragraph that allows interception with a warrant issued by a judge, he said it seeks to impose an obligation on operators to intercept subscriber’s communication. “Our understanding in obeying NCC’s directive that we make our networks intercept capable and grant access to both the National Security Adviser (NSA) and the Directorate of State Service (SSS) is that both agencies shall mark, monitor and intercept numbers of interest independent of operators. He lamented that requiring operators to intercept has administrative and security implications which are too onerous for operators to bear.
On the paragraph that details who can apply for a warrant, the structure of an application for a warrant and the circumstances under which an interception can be done without a warrant, among other things and a proviso which requires intercepts done without Warrant to be regularised via Warrant within 48 hours of its occurrence of commencement, he said it should be expanded to provide an exculpatory clause protecting operators from liability for acts or omissions done further to the duty the paragraph imposes.
He said the paragraph should state clearly that receiving a communication, purporting to emanate from the NSA should be sufficient for the licencee to act. In other words, there should be no duty on the licencee to investigate the veracity or otherwise of the letter, instrument or communication from the NSA.
On the prohibition of certain communications services which state that “Notwithstanding any other law in force….” He argued that the paragraph also prohibits certain communications services and makes it the responsibility of the licensee to acquire, at its cost, devices and facilities that will enable monitoring of communications.
“We contend that the use of the phrase “Notwithstanding any other law in force …” supposes that the NCC can by regulation proscribe an Act of the National Assembly. The NCC cannot do this. We, therefore, suggest that the offending phrase be removed or redrafted to reflect what the NCC can safely do.
On the requirement that intercept capability be acquired at the licencee’s cost, he said it should be reconsidered in the light of operational realities in the country, adding that licencees are operating in challenging environment and require support to succeed. “As things stand, critical sectors of the industry are distressed. Some licencees might not have the resources to comply, especially in an environment characterised by flux as technology continues to change dramatically” he said, adding that licencees derive no economic benefit from providing interception capability on their networks.
He argued that in other jurisdictions like the United States under the Communications Assistance for Law Enforcement Act (CALEA), support is provided to licensees to ensure that the requirement for intercept capability does not become a burden.
