Nigeria: Big Brother Is 'Tapping In'... Loud And Clear!

Last Updated: 10 April 2013
Article by Folabi Kuti

The Nigerian Communications Commission (NCC) has concluded plans to introduce Lawful Interception (LI); a legally sanctioned official access to private communications, such as telephone calls or e-mail messages. The regulatory body readily cites the need to enhance national security, prevent crime and aid criminal investigations, as a compelling reason for the regulatory intervention. That is an argument but not much more than that. It is, however, not an issue with only one legitimate viewpoint. As with most areas of legislative or regulatory interventions, there are differing philosophical positions and opposing legal interpretations on the content and scope of the guidelines issued by the regulatory body on the 'lawful interception of communications'. Both sides of the argument are passionate about their stance. The questions, of course, are many and varied.

Public policy vs. Private life

Of immediate concern is the rhetoric against interference with constitutional/fundamental rights; incidentally the most quoted argument against interception of private conversations. The argument here seems robust and almost unassailable. The constitutional safeguard in Section 37 of the Constitution of the Federal Republic of Nigeria 1999 is to the effect that "The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected". That obvious lettering is being violated when, as in George Or-well's famous allegorical novel "1984", the State acting through its ubiquitous agent (ridiculed as 'Big Brother') listens in on all the private conversations of its citizens. The real potential for the abuse of this step as evidenced from the United States, Europe and elsewhere rein-forces the local the human rights community's argument; howbeit, a headlong rush to a conclusion.

But pray, what is the argument on the other side? Constitutional expression of fundamental rights and freedom qualifications, are incorporated with respect to the rights of others and the public interest. Put simply, there are qualifications to the enjoyment of most of these rights. And yes, the limitations are recognized by the 'organic law of the land'. Thus, Section 45 of the same Constitution derogates from the rights so nobly enshrined in Section 37 when it provides in subsection 1 that: 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 defense, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons'. So, beyond a debating flourish, it is hard to see how 'phone tapping' for security/surveillance purpose(s) will, by itself, amount to an abuse of human right. The constitution makes an explicit provision for the derogation from this basic right of privacy protection by a law which is reasonably justifiable for the greater good or public benefit. This, in itself, explains the reason for the few other legislative interventions in place to assist police and other security agencies in covert surveillance activities and communications intelligence.

Checks and balances

Next, the question becomes apposite: what is the check in place to prevent abuse or possible manipulation and misuse? The superintending role of the court is required to secure the permission/warrant to tap a private conversation; the jurisprudential leaning being that for a court to deprive a citizen of his constitutional right, the circumstance for such deprivation must be urgent and extra-ordinary. An English case amply demonstrates this. In Malone v. Metropolitan Police Commissioner (1979) CH. 334; (1979) 2 ALL ER 620, in a Crown Court prosecution of the plaintiff, one of five defendants was charged with handling stolen property. The prosecution admitted that there had been interceptions of the plaintiff's telephone conversations on the authority of the Secretary of State's warrant. The plaintiff issued a writ claiming inter alia that such interception had been and was, unlawful and he sought by motion an injunction to restrain to restrain interception or monitoring of telephone conversations on his line. It was agreed to treat the motion as the trial of the action and, instead of the relief claimed in the writ, to seek relief in the form of declarations which, as finally settled, were grouped under the following heads: (1) that interception, monitoring or recording of confidential conversations on the plain-tiff's telephone lines without his con-sent, or disclosing them to third par-ties or making use of them was unlawful, even if done with the war-rant of the Home Secretary, and disclosing details of telephone calls was similarly unlawful; that, in the alternative all such interception, monitoring or disclosure was unlawful, where made without the plain-tiff's consent, to any officer in the Metropolitan Police, the Home Secretary or Office or any officer thereof; (2) that the plaintiff had a right of property, privacy and confidentiality in respect of telephone conversations on his telephone lines or the disclosure as in (1) were in breach thereof; (3) that, in the alternative and in relation to human rights, there was no remedy under English Law for interceptions, monitoring or recordings of conversations on his telephone lines or the disclosure of the contents thereof to third parties; (4) that interceptions and monitoring of his telephone lines violated Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (which entitled everyone to "respect for his private and family life, his home and his correspondence"); (5) that, in the alternative, there was no effective remedy in the United Kingdom for any such violation of his private and family life, his home and his correspondence.

On the question whether the declarations ought to be granted, it was held that in so far as telephone tapping meant recordings by the Post Office for use by the police in the prevention or detection of crime, no unlawful conduct had been established since there was no law against it, and although no statute authorised telephone tapping, there had been statutory recognition, by Section 80 of the Post Office Act 1969, that tapping on the warrant of the Home Secretary had an effective function in law. Applying the foregoing to the instant, it is convenient to mention that the Draft Lawful Interception of Communication Regulations recently issued by the NCC contains a few interesting provisions. Specifically, Part III on Interception of Communications categorizes Interception into: (i) interception without a warrant; and, (ii) interception with a warrant. In simple terms, the guidelines make a dichotomy as to communication interception requiring the permission of the Court before it can be done/lawful, and that which does not require the supervisory role of the Judge to make it lawful. Of the latter, the regulations further say, it is enough (or lawful) where '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'. This is arguable. Or, put differently, the logic is not easy to follow. The interception, if it must be seen to be in pursuit of a legitimate aim, and not an intrusion into the private life of at least that of the 'other party in the dark', the better view should have been except both parties to the communication consent to the interception. Now, since the consent of both par-ties will, in practical terms, de-feat the purpose of a surveillance activity, the threshold for all manner of communication interception should be with 'leave of court' or supervision of the regulatory body, or administrative tribunal/body set up for that purpose. Some third person/party, ought to make an objective judgment on material facts placed before it, before an interception can be said to be lawful. That is the sure and effective way to prevent misuse or wrongful dissemination of any private information. In Copland v The United Kingdom [2007] ECHR 253), the European Court of Human Rights (ECHR) found that the UK had violated the plaintiff's right to respect for her private life and correspondence under Article 8 of the European Convention on Human Rights, by the way in which it monitored her telephone calls, e-mail correspondence and internet use. It reasoned that just as telephone calls from business premises could be part of an employee's "private life and correspondence" (Halford v UK [1997] ECHR 32), so could e-mails sent from business premises and information derived from the monitoring of personal internet use. So, in the same way that Ms Halford, who was not warned that her calls would be monitored, could have reasonably expected that they would not be monitored, an employee could expect that his e-mails and internet use would not be monitored if he had not been warned. It further noted that even if the monitoring was not as extensive and intrusive as the plain-tiff claimed, the collection and storage of her personal information which the government admitted had been taken place without her knowledge, would itself amount to an interference with her right to respect for her private life and correspondence.

Content and scope of the regulation

The draft regulations contain the scope and objectives of the regulations in Section 1. The legal backing is said to be Section 70 of the Nigerian Communications Act, 2003 and all other powers enabling it in that regard. It provides that: "These regulations are made to provide a legal and regulatory framework for the lawful interception of communications in Nigeria, the collection and disclosure of intercepted communications. These regulations shall; provide the legal and regulatory framework for the lawful interception of communications in Nigeria and to put into effect the provisions of sections 146 and 147 of the Act; specify the nature and types of communications to be intercepted; prescribe penalties for non-compliance with these regulations; provide a notification procedure to the commission of all warrants issued, amended renewed or cancelled under these regulations; ensure the privacy of subscribers as contained in the Constitution of Federal Republic of Nigeria is persevered". To make for a robust regulation, there is the need to expand (and, expound on) the subject matters identified as the scope and intent of the regulations. Suffice to say that the content/provisions do not sufficiently address some of these issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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