analysisBy Eijeagbon Ohicheoya
Lagos — There is an important executive Bill before the Nigerian National Assembly called the "Computer Security & Critical Information Infrastructure Protection Bill" ("the Bill"). Because of the importance of this Bill, we would consider in this paper, the highlights of the provisions of the Bill, share the highlights of other similar legislations in the United Kingdom, the United States of America, Australia, South Africa, Canada and Switzerland in the greater expectation that the laws in these other jurisdictions would further assist the Nigerian National Assembly and the Nigerian people in having a better Law on wire tapping, computer and cyber crimes, and anti-terrorism.
Wire Tapping, Cyber Crimes & Anti-Terrorism Bill
The introductory part of the Bill describes its objectives to include " secure computer systems and networks and protect critical information infrastructure in Nigeria by prohibiting certain undesirable computer-based activities ..". This Bill seeks to create legal liability and responsibility for modern global crimes carried on over a computer or computer systems, i.e. the internet.
Some of these crimes, which carry penalties of fines ranging from the average sum of N100,000.00 (One Hundred Thousand Naira) to terms of imprisonment ranging on the average from six months imprisonment, include: -Hacking and unlawful access to a computer or a computer network.Spamming - this is unsolicited mails - fraudulent electronic mails, etc.Computer fraud, computer forgery, system interference.Identity theft and impersonation on the internet.Cyber-terrorism, cybersquarting, misuse of computer for unlawful sexual purposes, etc.
Unlawful Interception of Communications & Mandatory Retention.Section 3 of this Bill makes it an offence for any person, without authority or in excess of such authority where it exist, to access any computer or access a computer for an unlawful purpose. It is also an offence for any person to disclose any password, access code or disclose any other means of access to any computer program without lawful authority.
Section 12 of this Bill requires every service provider to keep a record of all traffic and subscriber information on their computer networks for such a period as the President of the Federal Republic of Nigeria may by Federal Gazette, specify. Service Providers are further required to record and retain any related content at the instance of any Law Enforcement Agency.
This Bill also allows any Law Enforcement Agency in Nigeria, on the production of a warrant issued by a Court of competent jurisdiction, to request a service provider to release any information in respect of communications within its network, and the service provider must comply with the terms of the warrant.
This Bill seeks to ensure the protection of the privacy and civil liberties of persons by requiring that all communications released by a service provider shall only be used for legitimate purposes authorised by the affected individual or by a Court of competent jurisdiction or by other lawful authority.
All law enforcement agencies carrying out their duties under this Bill must also have due regard to the constitutional rights to freedom of privacy guaranteed under the 1999 Nigerian Constitution and " take appropriate technological and organisational measures to safeguard the confidentiality of the data retained, processed or retrieved for the purposes of law enforcement".
To ensure compliance by the service providers or body corporate, who are the providers of all form of telecommunication services in Nigeria, this Bill recommends that any breach of the provisions of the contemplated Law, by these persons, shall on conviction be liable to the payment of a fine of not less than N5Million. In addition, each Director, Manager or Officer of the service provider shall be liable to a fine of not less than N500,000 or imprisonment for a term of not less than three years or to both the fine and the term of imprisonment.
The first and fundamental concern with this Bill is that there are no internal and external checks and balances provisions whatsoever in the Bill. There are no mandatory reporting procedures to either the Nigerian parliament or the Nigerian judiciary on the activities of law enforcement agencies in carrying out these wire tapping or lawful interception activities. The law enforcement agencies that have the responsibility of carrying out the provisions of this Bill are not enumerated in the Bill. There is no independent commissioner to monitor these activities.
There is also no provision for award of compensation where the civil liberties of individuals are breached neither is there provision for reporting to the citizens after the wire tapping activities have ceased. In jurisdictions with a longer history of democracy and wire tapping activities, where these checks and balances are regulated by Statutes, allegations and investigations of abuses continue to occur.
There is secondly, in the matter of obtaining a warrant or release of information for legitimate reasons, a recurring reference to either a Court of Law or " any other lawful authority " for obtaining either the warrant or the information. There is no enumeration or definition anywhere in the Bill, as has been done in other jurisdictions, of whom or what constitutes "lawful authority". It is recommended that this is a very good loophole for a breaching government to avoid an independent judiciary and constitute itself into ".. any other lawful authority" from where the civil liberties of individuals would be continuingly breached.
The treatment of evidence obtained from wire tapping activities in criminal proceedings are not described anywhere in this Bill. While there are civil law provisions requiring that illegally obtained evidence are not admissible without special circumstances been disclosed, this Bill would do well to emulate the laudable provisions in wire tapping legislations in the United Kingdom and the United States of America on the treatment of evidence obtained from wire tapping activities in criminal proceedings.
There is further a problem with the definition of what constitutes traffic information under this Bill? What also is "content" under this Bill? Would traffic information also include the recording of voice communication by service providers? If traffic information would include voice communication, who would be responsible for the huge storage and preservation costs of these voice communication? In the United States, statutes on wire tapping or lawful interception require that the government reasonably compensates individuals for expenses incurred for providing facilities and technical assistance in wire tapping activities. In Canada, service providers are provided with some costs savings for their networks whilst in Netherlands, the government had to grant some moratorium on compliance and waiver when some service providers faced bankruptcy as a result of the huge technological costs of ensuring compliance. Requiring the service providers to alone bear these expected huge costs would mean that the customers in Nigeria would ultimately bear the costs.
A fifth concern is the requirement by this Bill for service providers to deliver intercepted communications and data to locations of law enforcement agencies which naturally would be outside those of the service provider. There are no procedures for securing and or guaranteeing that these external deliveries would not compromise the network of the service providers or the civil liberties of individuals by persons other than the authorised service providers. There is currently no available evidence of serious hacking into the networks of the service providers in Nigeria even though there is available literature on the internet that there are technologies with which GSM communications can be monitored without the knowledge of the parties or of the service providers.
A sixth major concern with this Bill is that it imposes further duties of assistance in the identification, apprehension, legal prosecution, trailing and confiscation of proceeds of offenders for cyber crimes and unlawful interference with communications on the service providers and other relevant body corporate. These are onerous law enforcement responsibilities sought to be imposed on private businesses especially as there are also serious security risks of injury from the offenders that service providers and relevant body corporate may be ill equipped to provide for themselves.
A seventh concern is the requirement that in special circumstances a service provider or body corporate could be required to release information without a court warrant. There are no procedures for ensuring that this would only occur in cases of extreme emergencies and that immediately information is obtained, an equally urgent effort would be made to secure a court warrant as is done in the United States for example.
An eight concern with this Bill is the provision that the President of the Federal Republic of Nigeria could direct the law enforcement agencies to make such rules and regulations giving effect to the provisions of this Bill. This provision appears to be an over concentration of powers on the executive arm of government. Also, this provision appears to be making the law enforcement agencies both the accusers and the judge in relation to their own procedures? An independent body should be constituted for this and other aspects of giving full effect to this Bill.
It is necessary that further amendments are made to this Bill before it is passed into Law. International conventions on human rights preservation to which Nigeria is a signatory must be respected. Full definitions of key words like " . any other lawful authority ", "content", etc is highly recommended. An independent body should be constituted to oversee and interface between the executive, law enforcement agencies and the Nigerian parliament on the activities of cyber crime enforcement and applications in Nigeria. Provisions should be made for compensatory damages to be paid to citizens whose rights are infringed in any way by any interception activity found to be either wrongful or unwarranted. Further enlightenment of the members of the public on the application of this Bill and the civil liberties of citizens is also recommended as many Nigerians are not aware that this Bill is before the National Assembly.