Security operatives may soon be armed with the legal authority to access private communications either through telephone calls or e-mail messages if plan to introduce Lawful Interception by the Nigeria Communications Commission (NCC) scales through. The excuse is security. But at what point will they draw the line with the right to privacy?
If there is anyone out there who still latches on to his right to privacy and thinks the telephone is one of such platforms for heart-to-heart discussions, no matter what the topic is, the time to have a rethink might have come. It's official now- the Nigeria Communications Commission (NCC) plans to introduce lawful interception (LI), a legally sanctioned official access to private communications, such as telephone calls or e-mail messages in a bid to enhance national security, prevent crime and aid criminal investigations.
Under this initiative which is in response to a warrant from a judge, lawful interception is performed simply by applying a 'tap' on the telephone line of the target, making it possible for security agencies in Nigeria to listen to terrorist and criminal cell phone calls and then gather intelligence on their activities through such communications.
Drawing its powers from Section 70 of the Nigerian Communications Act, 2003 and all other powers enabling it in that regard, the commission however said it has not fixed a date for the take-off of the controversial policy which critics said can be used by repressive governments to intimidate the opposition.
A draft guideline posted on the NCC website requires service providers and Internet service providers to implement their networks to explicitly support authorised electronic surveillance. But that would not be by choice as a fine of N5 million is said to await any service provider or any of its officers who fail to comply with the provisions of the regulation.
The lawful interception has existed since the inception of electronic communications in the form "wiretapping"; it has become increasingly necessary now because of the sophistication of criminal enterprises in exploiting emerging communications channels. In fact, office of the National Security Adviser (NSA) was said to have in early 2010 summoned all telecommunications operators in the country to a meeting where it tabled the proposed initiative.
As good as the idea seems, especially in the face of growing terrorism in the country, its downside is what has constituted concern for many, especially when situated within the context of privacy. Besides, there are strong indications that government- hiding under the cover of security- has already begun to repress perceived enemies by tapping into their phone lines.
A certain top elected official is said to have completely suspended conversation on his telephone lines and even if there was need to speak to people, he only fixes appointment and holds his discussions in persons. But whenever telephone conversation was urgent, depending on what is at stake, he was said to have devised a means of hijacking the mobile telephones of his domestic aides on which platform he now speaks to people,
There is also the story going round about a governor presumed not to be in the good books of the authorities and whose lines are allegedly tapped into. The governor, for a long time, has not only changed his telephone numbers, those who know him said he has also suspended serious conversations on his phones. His fears was said to have been confirmed recently when a top international security agent warned him to be wary of his telephone conversations because agents of the state are on his trail.
Cases of this nature is said to abound everywhere and with people of different classes. But not many people get to hear them for fear of being hounded. However, if this is already happening when the right to tap into telephone conversation has not been approved with legal backing, then, there might trouble lurking in the corner for many that might be labeled enemies of state or antagonists of government.
Renowned lawyer and rights activist, Mr. Femi Falana (SAN) said the law would be in conflict with the right to privacy and that it remains unconstitutional and a gross violation of the rights of Nigerians as guaranteed by the constitution.
Falana, therefore, added that any law that is in conflict with the constitution of the land will have to give way. "The law will not fly. I can assure you that," he said.
On his part, Mr. Afolabi Fahanu (SAN) contended that some degree of interception could be conceded to enhance investigation. He was however averse to a situation where security operatives would cash in on such a right and go on a wide goose chase of targeted persons, adding that it should not be a blanket right to erode the right to privacy of people.
Senate Minority Whip, Senator Ganiyu Olanrewaju Solomon, said any such law would amount to an abuse of fundamental human rights and privileges. "There must be specific situation that would warrant that but how do we even monitor it to ensure that they do not abuse it? How am I sure that as a member of the minority party, the government in power will not tap my line and those of my leaders under this same excuse? Look, we all know that the law says you can’t detain people for more than 24 hours, but what do we see happening here? People are detained even for weeks. So, if we could not keep that, how are we going to stay within legal stipulation on such a sensitive right? It certainly can't work," he said.
Another lawyer and politician, Mr. Bisi Adegbuyi said, "We have to find a balance. We must design a mechanism to ensure that in the course of ensuring security, rights to privacy are not compromised".
Adegbuyi held that the same situation is operative in many parts of the world, citing the United States as example. He said in the US, "right to privacy is still sacrosanct. But in Nigeria, we tend to overdo things; we don’t know when to draw the line between state security and personal security. We dwell so much on state security as opposed to the security of an individual. But it is when the individual is secure that the state can be said to be safe. But like I said, we must find a balance."
Chijoke Nwosu, a security consultant though applauded the initiative and said in today’s unstable environments, the need for intelligence information is vital in preventing and combating crime; he however warned that high security requirements for LI systems are important to prevent possible manipulation and misuse.
Also, Iyene Owobokiri, Nigeria CommunicationsWeek in-house legal expert also agreed with Nwosu’s position and said that the Lawful interception has a strong legal basis.
Owobokiri held further that there is need to complement the multifaceted regulation of lawful interception with elaborated provisions of law concerning the requirements for the design and development of lawful interception systems.
But Amnesty International is concerned by instances where the provision of powerful surveillance and interception capabilities to repressive states are contributing to human rights violations carried out by the police, security and intelligence forces.
Though the organisation said it is not opposed to the transfer of surveillance in general, such technologies have inherent capabilities that facilitate human rights abuses by security forces in repressive countries.
Observers believe that the idea would be resisted by majority of Nigerians, no matter how hard the authorities push it. But such resistance, some believe, might not be sufficient enough to stifle the authorities bent on relying on the cover of security to push it through.
By and large, Nigerians, observers say, should know that even without due passage of the law, a semblance of the law is already in operation. As such, for those who do not delight in criminality of any shade, the need for caution while on the phone is imperative. Who knows? Your telephone might just have been tapped.