The Nigerian Communications Act 2003("NC Act")1 regulates communications in Nigeria. Its regulatory purview includes all forms of telecommunications and internet-based communications. The Nigerian Communications Commission2 ("NCC"), established under the NC Act, is charged with responsibility for regulation of the communications sector in Nigeria. Pursuant to its powers, the Lawful Interception of Communications Regulations of 20193 (the "Regulations") were enacted for the purpose of providing the legal and regulatory framework for the lawful interception of communications, collection, and disclosure of intercepted communications in Nigeria. The procedure established by the Regulations, which will be discussed later in this article is clear and unambiguous.
On the 13th of June 2022, the National Information Technology Development Agency (NITDA)4 released a draft Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries and Conditions for Operating in Nigeria5 (the "Draft Code"). The objective of the Draft Code is to create a framework for the planning, development, standardization, coordination, monitoring, evaluation and regulation of information technology practices, activities, and systems in Nigeria. The Draft Code, which is currently undergoing consultations by various stakeholders, sets out what it is expects will be industry best practices for a safer digital ecosystem in Nigeria.
A key provision of the Draft Code is for Interactive Computer Platforms, Internet Intermediaries and Large Services Platforms, (collectively referred to as "Platforms") to provide information under its domain or any assistance to any authorized government agencies regarding content put on a Platform, for the purpose of carrying out an investigation, combating cybercrimes, or prosecuting an offence.6 This includes the disclosure of the identity of the creator of such information7. Towards implementation and compliance, NITDA has proposed a co-regulatory approach in the Draft Code by including the NCC as an "Authorized Government Agency". The Draft also lists the NC Act as part of the legislations to be considered in this co-regulatory approach. Other agencies included in the Draft Code include NITDA and the National Broadcasting Commission.
The Draft Code requires all Platforms to act expeditiously upon receiving a Court order directing a Platform to provide any information under its domain or any assistance to any Authorized Government Agency. While the position under the Regulations is mandatory for licensees under the NC Act, the Draft Code appears to create an obligation to disclose information on Platforms who may not be creators of content. Due to the ambiguity and the broad requirement of the Draft Code, there is therefore the potential for abuse and a mischievous interpretation.
This article aims to explore the potential areas of conflict between the Regulations and the Draft Code, as well as to highlight the likelihood of abuse of the Draft Code.
Compliance and interception of communications under the NC Act viz-a-viz the provision of information and disclosure requirement under the Draft Code
For the purposes of interception under the Regulations, an application for a warrant must be made to a Judge by an "Authorized Agency", which refers to (a) the office of the National Security Adviser or his designee who shall not be below the equivalent of an Assistant Commissioner of Police and (b) the State Security Services represented by the Director or his designee who shall not be below the equivalent of an Assistant Commissioner of Police8. For international mutual assistance to which Nigeria is a party, the application by the Regulations is to be made by the Attorney General of the Federation.9
The application is by a warrant to the Federal High Court, containing full particulars of all the facts and circumstances alleged in support of the application. Where there is an imminent threat of death, serious injury, activities that threaten national security and in relation to organized crime, interception may be done without a warrant. However, an application must be made within forty-eight hours after the intercept, to regularize the intercept done without a warrant and where the application is denied, the interception shall be terminated, and further interception treated as unlawful.
The warrant must contain the identity of the subject for interception, the grounds on which the application is made, the detailed description of the communication sought to be intercepted, duration of the warrant and the identity of the Authorized Agency making it. A judge may only issue the warrant where the facts alleged in the application are reasonable and persuasive enough and the interception of such communication is the only means of obtaining the information required under the warrant. The warrant is also not in perpetuity and only lasts for a period of three months or less and an extension can only be granted at the discretion of the judge. The Regulations therefore have a detailed process for the interception of communications, as well as clarity regarding agencies who can apply for a warrant.
The description of Platforms under the Draft code creates a duplicity with pre-existing legislation, because the NC Act has adequately provided definitions, which would ordinarily include the Platforms as described under the Draft Code. The definitions of "Content", "Communications Data", "Communications Services" and "Communication System" under the NC Act are instructive for this purpose. The NC Act defines Content as "any sound; text, still picture, moving picture or other audiovisual representation, tactile representation or any combination of the preceding which is capable of being created, manipulated, stored, retrieved or communicated electronically".10 Communications Data11 is defined as (a) any traffic data comprised in or attached for the purposes of any Communications System by means of which it is being or may be transmitted, any information which includes none of the contents of a communication and is about the use made by any person of any Communications Service. Communications Service12 means "a service provided by means of a Communications System to any person for the transmission of Communication from, to or within Nigeria without change in the content or form". Communications System13 is defined as "any system which exists in Nigeria for the purpose of facilitating any transmission, emission, or reception of signs, signals, writing, images, sounds or intelligence by means involving the use of wire, radio, visual or electromagnetic energy".
These definitions, as shown above, would clearly include the description of Platforms under the Draft Code, therefore the Draft Code descriptions of Platforms could be interpreted as superfluous. In addition, the Regulations have expressly articulated the requirements for the interception of communications, including limiting the parties authorized to apply for a warrant, which is adequate. While the NCC does not regulate all Platforms as described under the Draft Code, there is an obvious interface between licensees under the NC Act and Platforms under the Draft Code, because of the reliance of Platforms on telecoms infrastructure of licensees to carry voice and data traffic.
The ambiguity of the Draft Code creates a few challenges, which may lead to unintended consequences through a mischievous interpretation. If not carefully defined, the Draft Code when operational, may be used to "intercept" communications without any clearly laid down procedure.
Some of the issues arising under the Draft Code are as follows:
- Definition and provision of information: Under the Draft Code, the parameters for provision of information and disclosure are not clearly defined. It provides that Platforms are to merely expeditiously "provide information" upon receipt of a court order and "disclose identity" of the creator when requested to. This leaves the ambit of the interception open to mischievous interpretation. With privacy being the cornerstone of communication, there is a need to ensure that whatever information is being requested must be specific to a crime being investigated or committed. The method is based on the application of a court order and Nigeria is a multijurisdictional country, with several courts having jurisdiction over different subject matter and persons. It is therefore imperative that the process for provision and disclosure of information is clearly articulated.
- Supervision: Due to the severity of the interception of communication, the Regulation has provided that a judge of the Federal High Court shall grant the order. The nature of the application ensures that the application is not granted for frivolous reasons. Also, the order can only be amended, varied extended and cancelled by that judge, except under very strict circumstances. The Draft Code makes no provision for this and thereby allows for frivolous use of its provisions for reasons not contemplated or anticipated by NITDA.
- Co-regulation and Duplicity: The NCC acts as the primary regulator for communications in Nigeria and this has extensively covered the parameters for lawfully intercepting communications in Nigeria. With the Draft Code also providing that government agencies have the power to request information, including the identity of creators of information, it creates a duplicity which in turn creates a conflict. This is especially since the provisions to request information in the Draft Code, are not expressly articulated and may therefore be subject to mischief.
- Protection: It is imperative that all enacted laws, guidelines and codes of practice do not create opportunities for abuse. Under the Regulations, the authorized agencies who can intercept communications include the Office of the National Security Adviser and the State Security Services. This underscores the constitutionally protected right to privacy unless it is necessary on grounds of national security or where there is a threat to life. The Draft Code may have watered down this requirement by extending this power to the co-regulatory agencies of NITDA, NCC and the National Broadcasting Corporation.
Conclusion and Recommendations
Interception of communication is an issue that goes to the fundamental right to privacy of individuals as protected under the Constitution of the Federal Republic of Nigeria14. It is therefore imperative that the process enshrined in any law or guideline must be unambiguous to ensure there is no room for mischief. There appears to be potential areas of conflict created by the Draft Code as we have examined in this article. These need to be reviewed and revised to ensure the intention of the Draft Code is achieved without creating new mischief.
1. Cap N97, LFN 2010
2. Section 3 of the NC Act
4. Established by virtue of the National Information Technology Development Act, 2001
6. Supra note 4 at Part 1 (2), Draft Code
7. Part 1(2) & (5) of the Draft Code
8. Section 12(1) (a), (b) Lawful Interception of Communications Regulations, 2019
9. Ibid Section 12(2)
10. Ibid at Section 157
11. Supra note 6 at Section 23
12. Supra note 1 at Section 157
13. Ibid at Section 157
14. Section 37 of the 1999 Constitution of the Federal Republic of Nigeria
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.