3 October 2013

Nigeria: Interception of Communication Bill 2012

press release

Legal and regulatory framework

Currently, Nigeria has no specific law governing the interception of private communications in Nigeria. This bill on Interception and Monitoring Bill 2012 seeks to provide the first framework for interception of private communication.

The current position on the interception of private communications is governed by:

The 1999 Nigerian Constitution

The Communications Act and

The Freedom of Information Act 2011.

1. Constitution

Section 37 of the Constitution 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.

2. Communications Act

Section 147 of the Communications Act provides that the Nigerian Communications Commission (NCC) - the Nigerian telecommunications sector regulator - may determine that a licensee or class of licensees "shall implement the capability to allow authorised interception of communications and such determination may specify the technical requirements for authorised interception capability".

This means that the act recognises a situation when the NCC may direct licensees to permit the "authorised interception of communications" through their facilities. On a related note, Section 148 of the act permits the NCC to issue an order stipulating that any communication or class of communications to or from any licensee, person or the general public, relating to any specified subject, either shall not be transmitted or shall be intercepted or detained on grounds of national security or in the public interest.

Section 146(1) of the act also imposes an obligation on a licensee to use its best endeavours to prevent its network facilities or network service from being used in or in relation to the commission of any offence under any law in operation in Nigeria. At the written request of the NCC or any other authority, a licensee is required to assist the NCC or other authority:

"as far as [is] reasonably necessary in preventing the commission or attempted commission of an offence under any written law in operation in Nigeria or otherwise in enforcing the laws of Nigeria, including the protection of the public revenue and preservation of national security." (Section 146(2).)

To protect licensees from potential litigation by an affected subscriber, the act provides that a licensee 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 on it under Sections 146(1) and (2). However, it is unclear whether this protection extends to civil proceedings.

The Guidelines for the Provision of Internet Service issued by the NCC pursuant to the Communications Act require:

"All licensees providing internet services or any other related internet protocol based telecommunications service' to cooperate with 'all law enforcement and regulatory agencies investigating cybercrime or other illegal activity... [and to] provide any service related information requested by the [NCC] or other legal authority, including information regarding particular users and the content of their communications."

The NCC has engaged the services of external consultants to develop the regulatory, legal and technical framework for lawful interception in Nigeria. The framework is expected to establish rules in respect of access to private communications.

3. Freedom of Information Act

Section 1 of the act provides that:

"Notwithstanding anything contained in any other act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever described is established."

However, the act prohibits the disclosure of certain information, such as personal information (i.e., any official information held about any person), except in the circumstances specified under the act. The act defines 'information' to include any records, documents and information stored in any form, including written, electronic, visual images, sound and audio recordings.

With regard to the disclosure of information, Section 11(2) of the act provides that an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause.

Section 14(2) of the act allows public institutions to disclose personal information where the person to whom it relates consents to such disclosure or where it is in the interest of the public to disclose such information.

Under the act, 'public institutions' includes private bodies providing public services or performing public functions. This definition covers most limited liability companies providing public services.

The act prohibits the disclosure of certain information, such as personal information (ie, "any official information held about any person [/corporation]"), except in the circumstances specified under the act. Section 14(2) of the act allows public institutions to disclose personal information where the person to whom it relates consents to the disclosure, where the information is publicly available or where it is in the interest of the public to disclose such information.

Proposed legislation

The proposed bill if enacted, will empower various security agencies to intercept phone calls, emails and telegraphic communications, as well as prohibiting certain telecommunication services, which cannot be monitored.

An Increasing Need for Lawful Interception

Due to the diverse nature of the communication medium due to expanding technologies has created significant challenges for law enforcement agencies and national security organizations responsible for battling various forms of crime and terrorism.

The sophistication of criminal enterprises in exploiting emerging communication channels has increased with the rising popularity of these channels, posing a very real challenge to organizations responsible for protecting public safety and reducing the impact of crime on communities.

Given the broad availability of communication options and the relative ease with which criminal networks and terrorist groups can exchange information across these channels - by both data and voice communication - the impetus to intercept illicit exchanges and track the operations of criminal enterprises is strong and compelling.

Regulatory Environment

An overlapping framework of international and national regulations establishes the foundation for the monitoring of telecommunications, implemented to enable law enforcement agencies to intercept messages or information being distributed for illegal use.

Section 1 of the bill provides that no one may intentionally and without warrant intercept a communication or intentionally monitor any communication by means of a monitoring device, in order to collect confidential information on any person, body or organization.

However, it goes further to empower security agencies to do so for National Security reasons.

The ambit of the omnibus provision that is vague in meaning and in content is what is scary about this law (among many other thing). As it provides that an interception may be lawfully carried out by an authorized officer whom it describes as the Chief of Defence Staff, the Inspector General of Police or the director of SSS. The issue is that by the enabling Acts setting up the officers they can duly act through any of their officers. in this case the idea of getting a warrant is made of little use or moment because they can act on the pretext of National Security.

The idea of National Security has remained a thorny legal term, which is open to several interpretations, and has not been defined here under the bill.

Procedure for interception

The bill contemplates that before making an ex parte application to the judge, a person seeking to execute an interception must prove to the court that the interception is in the interest of National Security.

This provision is not in synch with the letters of section 1(2) b which creates another alternative to warrant where the issue is in the judgment of the authorized officer of National Security Interest. This is where the entire problem starts.

The whole provision on warrant is only a cotton wool over the key leeway. There is need to apply judicial review on all such interception powers for now this can then be cautiously diluted but with adequate safeguards.

The danger is that it is too open, unaccountable and unverified. This violates the intention of the constitution to protect privacy. The international best practice suggest that all such powers must be accountable, passing through various mechanism for prudence and respect the solemn right of the citizen to privacy.

Conditions for grant of direction

A judge will be permitted to issue a direction only if he or she is satisfied, on the facts alleged in the application, that there are reasonable grounds to believe that:

a serious offence has been, is being or is likely to be committed which cannot be investigated in another appropriate manner; or

Security or other compelling national interests are threatened or the gathering of information in relation to the threat is necessary.

Where these conditions are satisfied, the judge may direct that a particular communication which has been, is being or is intended to be transmitted by telephone or in any other manner over a telecommunications system be intercepted.

The application to the judge must be in writing and should contain full details of all facts and circumstances alleged by the officer or member concerned.

Duration of direction

Section 5(1) of the bill provides that a written direction may be issued for a period not exceeding three months. In cases of sufficient urgency, a judge may make an oral direction upon hearing an oral application, which must be confirmed in writing within 48 hours. A three-month extension of the period may be granted upon an application to the judge.

CONCLUSION

The purpose of this bill which is to ensure that our security agencies can gather intelligence and deal with the change face of criminality through information must be exercised in such a way that require service providers to provide subscriber and other information, without unreasonably impairing:

The privacy of individuals;

The provision of telecommunications services to Nigerian citizens; or

The security and safety of private communications generally.

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