Wiretapping: A new job for service providers
After Parliament passed the watered down version of the controversial new Criminal Procedure and Evidence Bill, a new relationship of legal wiretapping is set to begin soon. Government will now rely on local telecommunications companies for help in communication tapping.
The government needs the communication providers in order to ensure cooperation as the latter becomes involved in a broad range of classified activities which include covert operations and wiretapping. Following the new relationship, communication service providers will offer technical assistance in carrying out a court order permitting the wiretapping of specified communications.
Wiretapping is the interception of the contents of communication through a secret connection to the telephone line of one whose conversations are to be monitored usually for purposes of criminal investigation by law enforcement officers. The government recently made amendments to the controversial new Criminal Procedure and Evidence Bill by removing clauses that would allow authorities to spy on citizens and conduct undercover operations without a warrant. The Bill, which was passed by Parliament last week, went further and criminalised the abuse of these powers, with penalties up to life imprisonment.
Clause 19 of the new Bill states that the court shall grant an application to carry out an interception of communication warrant for purposes of gathering evidence of a serious crime related activity. Interception of communication in this case will require cooperation from local communication service providers.
The amendment which was made on the same clause, reveals that a court may approve a warrant which will then require a communication service provider to intercept and retain specified communication received or transmitted by subjects of investigations. The service providers will also be required to intercept and retain specified communication which is about to be received or transmitted. Just like the US Communications Assistance For Law Enforcement Act (CALEA), which is a wiretapping law passed by Congress in 1994, Clause 19 of the new Bill requires telecommunications providers and equipment manufacturers to allow law enforcement agencies to intercept communications with a warrant. All this according to the government is meant to keep Botswana safe while strengthening privacy.
Not only does the new Bill require communication service providers to cooperate with investigations, they may also be required to provide access using hardware and software designs. The law enforcement agencies will also require local services that enable communications including encrypted e-mail, social networking web sites and software that allows direct “peer to peer” messaging to be technically capable of complying if shown this wiretap warrant. People are increasingly communicating online instead of using phones, therefore the mandate of the law enforcement agencies would also include being able to intercept and decode encrypted messages as well. The government’s lawfully authorised intercepts seeks to balance security needs with protecting privacy.
Local communication service providers also differ so court-approved surveillance may be affected because of a service’s provider’s technical design.
Therefore, it remains to be seen if law enforcement agencies will spend millions of pula in helping communication companies to bolster their electronic surveillance capabilities. Also, if the agencies do not aid service providers, implementation would be a huge technology and security headache because the investigative burden and costs will now shift to communication service providers. While local communication service providers are mostly likely to comply, it is not clear how agencies could compel compliance by overseas services that do no domestic business. The court will also “authorise an investigating officer to enter premises and to install on such premises, a device for the interception and the retention of a specified communication or other communication of a specified description, and to remove and retain such device.”
In Clause 16 of the Bill, an investigating officer shall not intercept communications unless the investigating officer is authorised to do so by an interception warrant issued. Under the same clause, it is stated that a person who intercepts communication without authorisation commits an offence. The new Controlled Investigations Coordination Committee will coordinate such investigations and also “protect the interests of interception subjects and targets.
No one knows yet if the Bill will help catch the most dangerous criminals, or whether it may even slow investigators down by eating up resources and generating extraneous leads. The government, however, continues to claim the Bill can stop even terrorists by “gathering information concerning an actual threat to national security or to compelling national economic interest is necessary.” While the new Bill can still give the government more leeway in obtaining wiretapping warrants, supporters of the law claim that it will allow the government to respond quicker to terrorist threats, but opponents fear that it will be used inappropriately and, ultimately, is ineffective.