Interception of Communication and the Right to Privacy: Legality or Otherwise

Richmond Idaeho examines the concept of“Lawful Interception”of communication, which is the official access to private communications like telephone calls, emails and instant messages, stating that while it may be necessary in certain situations, especially to curb criminal activities, it must be utilised only for reasons that fall within the ambit of Section 45 of the 1999 Constitution Introduction

Communication, is basic to human co-existence. It is the exchange of thoughts, ideas and information amongst people. The act of communication is natural, and the means through which it is done, is social. Society tends to regulate or limit, the extent to which certain communications can be made, in its bid to maintain order and social cohesion.

Thus, the preservation of social harmony, is largely hinged on a successful prevention, elimination or reduction of crimes and criminal activities. In most cases, some of these activities are carried on with active communication through the internet or telephone lines.

In Nigeria, the rate of kidnappings, indiscriminate killings, and the recent spike in terrorism is alarming. These security challenges prompted the Nigerian government, to introduce a law/regulation into the national communications and security system, for the purpose of intercepting communications and thus, monitoring criminal activities, especially those carried out through telecommunication (including the internet and social media).

The Spectrum of Security System and Information Technology in Nigeria

The Nigerian information technology and communication sectors, are largely regulated by the Nigerian Communications Commission (NCC). The NCC is empowered by Section 70 of the Nigerian Communications Act

(“the Act”) to make regulations and guidelines for regulating licensees (telecommunication companies) in the communication sector. In exercise of this power, NCC has proposed a regulation, “Lawful Interception of Communications Regulations”, for interception of communications.

Lawful Interception (LI) is “the mechanism and process of legally sanctioned official access to private communications, such as telephone calls or e-mail messages. In general, this is carried out under the legal mandates of a country by a network operator or service provider, who gives law enforcement officials access to the communications of private individuals or organisations.” (the Internet Society).

The interception of communication systems by law enforcement, regulatory or administrative agencies, and intelligence services, is usually premised upon the provisions of the relevant national laws, otherwise known as “wiretapping”. Thus, LI can be seen in this light as a consequent extension of wiretapping to cover emerging communication channels. In Europe, Canada and the United States of America, LI is fundamentally entrenched in various local and international laws.

It is important to point out that, not all interception by a law enforcement officer is lawful. To qualify as LI, the intervention must be lawful in the strict sense of the word. According to Technology Watch Report:

“For interception to be lawful, it must be conducted in accordance with national law, following due process after receiving proper authorisation from competent authorities.”

In Nigeria, the NCC has taken steps in exercising its powers, as conferred on it by the combined effects of Sections 146 and 147 of the Act to intercept private communications.

In furtherance of its powers, NCC has prescribes a fine of N5,000,000.00 (Five Million Naira) against any service provider or officer, who fails or neglects to comply with the provisions of the regulation, and a daily default penalty of N500,000.00 (Five Hundred Thousand Naira), if the offence is a continuing one. See Regulation 20 of the Draft “Lawful Interception of Communications Regulations”.

The purport of LI is to enable the relevant agencies to obtain information on the identity of the target, as well as to have access to the content of a target’s communication, including communication by telephone, emails, instant messages, etc. for the purpose gathering intelligence information necessary for preventing or monitoring crimes.

Does Lawful Interception Violate the Right of Privacy of Citizens?

The inalienable natural rights of man, which includes right to life, liberty and property, necessitate what today we call fundamental rights as guaranteed by local and international legislations, some of which to wit are rights to life, liberty, human dignity, family and private life (privacy). Section 37 of the Constitution of the Federal Republic of Nigeria 1999, as amended

(“the Constitution”), provides for the protection of the private and family lives of Nigerians.

Against this background and considering the mechanics of LI, does the implementation of LI violate the citizens’ right to privacy? This fundamental question has remained unresolved, as arguments have been advanced in favour of both sides.

Some proponents of LI, have argued that LI will not violate the right of privacy of

“LI SHOULD ONLY BE UNDERTAKEN ON COMMUNICATION, WHERE THERE IS CLEAR PROOF THAT THE REASON FOR SUCH INTERCEPTION FALLS WITHIN THE AMBITS OF SECTION 45 OF THE CONSTITUTION”

citizens, and that same will not compromise the integrity of internet/network service providers. Conversely, others have posited that the mere interception or tapping of people’s communication without their knowledge, would itself constitute a violation of their right to privacy as guaranteed and protected under the Constitution.

In considering the above positions, we would defer to the provisions of Section

45 of the Constitution, which spells out certain exceptions and qualification to the fundamental right of privacy, and thus making LI a permissible invasion into the privacy of citizens. By virtue of Section 45 any law permitting LI for the purpose of the “interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom or other persons” would be valid. In other words, LI must be in furtherance of the above objectives, aimed at protecting the society from crimes and criminalities associated with the use of wired or wireless communication.

In view of the above, the citizens in exercising their rights in the State, owe the State a corresponding duty. This duty becomes the collective security, morality and common interest of the State (in other words, the “rights” of the State), which when in conflict with the rights of the citizens, takes pre-eminence over those of the individuals. This position, which has been given legal effect in international and domestic laws, is drawn from the philosophical theories of the Social Contractarians, to the effect that the collective interests of the State, is paramount to those of the individual contracting parties (citizens), and as such, the right of the individual citizens should as a matter of necessity give way to the societal rights, that is the common social good. Thus, LI would be considered as one of such rights of the State, which is far and above those of the individuals.

To this extent, LI, for the purpose of social security, could result in the infringement of the right of privacy of the citizens. But by virtue of the above provisions of the law, such infringement would be permissible where it is done “in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom or other persons”.

Can Lawful Interception Remain “Lawful” in all Circumstances?

We have considered above that LI when exercised in the context of Section 45 of the Constitution will qualify as permissible, however, it is not in all circumstances that LI will be lawful. In this regard, where LI is undertaken for reasons other than those permitted by law, such LI will not and cannot be lawful.

Accordingly, it is posited that LI can therefore, be subject to misuse. In other words, it could be deployed by the wrong persons eg private individuals or public individuals for private purpose. Consequently, it is important that NCC considers the functionality of the system against the background of effective and efficient management of the technology. NCC, as well as telecommunication companies, must provide facilities in place to protect its information system and data base from any possible hijack by internet “experts” or private individuals. Any possible hijack of the data base, could result into “internet kidnapping” wherein unwholesome persons could exploit that avenue into obtaining ransom from unsuspecting individuals, as it was in the case of the wannacry (ransomware) episode. The possibility of this is not farfetched, as can be seen in the seemingly unending “cheat” codes (hacking of telecommunication internet service providers) available to users of telephone internet facilities.

It extreme cases, there are instances where certain information obtained are used by private persons and/or investigators, for their selfish gains, e.g the Pellicano wiretap indictment. This situation can also be compared to the recent Panama Papers leak, and the Hillary Clinton private email saga, which more or less largely affected the outcome of the US Presidential elections in 2016. It is also important that, LI must guard against the access and use of confidential information of individuals in the society, for political gains.

The motive for LI may be good, but nevertheless, LI is not immune from abuse, which could however, disqualify it from constituting a permissible act into an “infringement”. That is to say, it can be directed against unsuspecting citizens and unwarranted interception of private communications, which could thus, be classified as an authorised “unlawful” harassment. This could defeat the intendment of the legislature, and will constitute an impermissible infringement on the right of privacy of the citizens.

Evaluation and Conclusion

Thus, a successful implementation of the LI policy, must be done in such a way that the privacy of the individual is not compromised. LI should only be undertaken on communication, where there is clear proof that the reason for such interception falls within the ambits of Section 45 of the Constitution. The system must also be sufficiently controlled and secured, so as to prevent it from possible misuse and hijack by private individuals or investigators.

In summary, we would conclude with the following recommendation from the Internet Society:

“We therefore, strongly recommend the conservative deployment of these technologies, targeted narrowly at the criminal element, rather than in a manner that is costly to the general public, and potentially harmful to the law- abiding citizen. We also recommend that governments that mandate interception services, materially contribute to the costs of their deployment, operation, and necessary training of ISP [internet service providers] and law enforcement staff.”