Beware, your calls may be monitored

Nigeria seems to be moving closer to the introduction of the much criticised ‘telephone tapping’, known as Lawful Interception, as the Nigerian Communications Commission, NCC, prepares to award contract for mobile phone surveillance and intelligence gathering.

In a matter of months, Nigerians may soon have their fi xed and mobile phones and electronic mails monitored by the Federal Government. Bent on introducing the much criticised ‘telephone tapping’, known as Lawful Interception (LI), the Nigerian Communications Commission (NCC) is said to have fi nalise arrangement for the award of contract for the surveillance and intelligence gathering activities. Already, the NCC has invited tenders from reputable fi rms with proven experience to undertake consultancy for the award of 25 consultancy contracts in line with the Public Procurement Act 2007.

Few months ago, when the NCC came out with a draft policy on Lawful Interception which is meant to monitor telephony communications such as phone calls, short message services (SMS) and chat messages, many stakeholders had stoutly spoken against it, arguing that such exercise would impede on the privacy of the citizens.

Though it is generally referred to as telephone tapping or telephone bugging, Lawful Interception has become an important tool for law enforcement agencies (LEAs) around the world for investigating and prosecuting criminal activities and terrorism.

The International Telecommunication Union (ITU) describes the LI as the lawfully authorised interception and monitoring of telecommunications (voice and data communications) to obtain the forensics necessary for pursuing wrongdoers pursuant to an order of a government body. Interception may take any of several forms, such as, the live interception of communications (“listening in” to actual conversations real time), access to audio recordings of previous conversations, access to communications records (CDRs, etc.) as well as access to location information (pinpointing presence of the subject) etc.

Most countries have passed laws that require telecommunication service providers to support LEAs with duly authorised requests to identify, monitor, and deliver all of the electronic communication of specifi ed individuals and groups.

The main functions of any LI solution are to access Interception- Related Information (IRI) and Content of Communication sessions (CC) from the telecommunications network and to deliver the information in a standardised format via the handover interface to one or more monitoring centres of law enforcement agencies.

Through a new regulation being proposed by the NCC, tagged “Draft Lawful Interception of Communications Regulations”, telecommunication service providers in the country are to be compelled to provide unhindered access to subscribers’ telephone calls or e-mail messages. According to the NCC, by virtue of the Nigerian Communications Act (NCA) 2003, telecommunications providers are under obligation to implement the technical capabilities for LI – to enable national security and law enforcement agencies to exercise their authority to intercept communications.

With the new regulation seeking to provide the legal and regulatory framework for the lawful interception of communications in Nigeria, and to put into effect the provisions of Section 70 of the Nigerian Communications Act, the regulations shall specify the nature and types of communications to be intercepted; prescribe penalties for non-compliance; provide a notifi cation 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 preserved”.

According to the highlights of the draft regulation, while communication can be intercepted in any part of the country, intercepted communication can be disclosed in the interest of national security. Though privacy of subscribers will be ensured in consonance with the Constitution of the Federal Republic of Nigeria, warrants can be issued for the purpose of preventing or investigating a crime, or protecting and safeguarding the economic wellbeing of Nigerians, or in the interest of public safety.

Also, warrants may be granted to the National Security Advisers (NSA) or a designee not below the rank of Assistant Commissioner of Police (or equivalent) or to Director State Security Service or designee not below ACP. The NSA may initiate interception without warrant in an emergency, which may entail death, danger or serious injury, or in cases of conspiracy threatening national security, or organised crimes. When such happens, the NSA must make application to a Judge within 48 hours after interception and if such application is denied, interception must terminate immediately.

A warrant is issued for three months, and lapses unless renewed for another maximum of three months, as any person intercepted shall in writing notify the NCC, and may make application to the court for judicial review. Interception will be in force till reversed by a court. Once any piece of intercepted communication is admitted by court, all copies shall be destroyed by the law enforcement agency in whose custody the information resides as interception communication shall be kept confi dential by law enforcement agencies, and only shared for the purpose of investigation and criminal proceedings.

When communication is encrypted, then it must be decoded by the Licensee, failure to comply with the law makes any Licensee liable to a N5 million fi ne or a daily default of N500, 000 as it may even lead to licence revocation.

To show its total commitment to the introduction of the LI, other consultant contracts which the NCC will be awarding include: Review of the Readiness of Social Media Networks and its Implications for Telecommunications Regulation and National Security; Development of a Technical Framework for Data Filtering in Telecommunications Networks; and Development of a Technical Framework for the Use of Social Media Networks.

Others are Electronic Archiving of Documents; Upgrade and Comprehensive Maintenance of Site to Site VPN Solution; Implementation of Visitors Management System (VMS); Localised Investigation into the Electromagnetic (EM) Emission from telecommunications radiators associated with masts, towers and terminal devices and study to quantify the value and compliance levels in the use of 2.45GHz and 5.8GHz centre frequencies of the ISM Band in the Nigerian market.

According to Director, Public Affairs of the NCC, Tony Ojobo, “The technical and fi nancial proposals shall be submitted in a sealed envelope,” adding that “The document should be dropped in the bid box located at the reception of the Commission’s head offi ce.

However, it would be recalled that shortly after the NCC had announced its plan for the Lawful Interception (LI) project, the Federal Government was alleged to have awarded a $40 million contract to an Israeli company to provide technology tool and software to monitor emails of Nigerians online.

Series of criticism had followed the pronouncement. In the words of Engr. Lanre Ajayi, President, Association of Telecommunications Companies of Nigeria (ATCON), such a contract remains uncalled for as many Nigerian telecommunications companies are already using the technology on their networks.

Speaking at a forum for the review of lawful interception organised by the Joint Action Committee for Information Technology Awareness and Development (JACITAD), Ajayi listed a Netherlands company, Digivox as key supplier of interception technology tools to the Nigerian government and telecommunication operators which Nigeria’s State Security Service (SSS), MTN, Airtel, Etisalat and Glo are among its business partners.

Clearly, the NCC decision has not been well received by many Nigerians. Engr. Gbenga Adebayo, chairman, Association of Licenced Telecommunications Companies of Nigeria (ALTON) noted that “By virtue of NCC Act 2003, operators are under obligation to implement technical capabilities for lawful interception,” he however submitted that there was no law protecting the operators from attacks in the performance of their duty while helping government agencies.

“It is worrisome, that where operators have provided some information to security agencies, the law enforcement and security agencies have said ‘ these operators gave us this information; that operator gave us call data records’. This has often led to attacks of operators’ facilities. It is critical that the National Assembly provides legislative backing on lawful interception”, he stated.

Nasir El-Rufai, former director- general, Bureau of Public Enterprises (BPE), believes that the move to “regulate” Lawful Interception of Communications” is a contravention of Nigerians’ fundamental human rights.

Describing the LI as being similar to eavesdropping, El- Rufai said that over two hundred years ago, in the fourth volume of William Blackstone’s ‘Commentaries on the Laws of England”, eavesdropping has been recorded as an offence indictable at common law.

Making reference to what Blackstone wrote in 1769 that at common law, “Eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the courtleet; or are indictable at the session, and punishable by fi ne and fi nding of sureties for good behavior,” El-Rufai stated that “Listening to other people’s conversations is therefore not only objectionable but a crime in common law jurisdictions like Nigeria.”

Citing Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 which guarantees fundamental rights of citizens, he stated that Sections 34, 35, 37 and 38 entrenched rights that may be breached if the government unlawfully intercepts communications between citizens.

“From the foregoing, it is not only unlawful for the government to invade the privacy of citizens by intercepting letters, phone conversations or emails, but a constitutional violation and therefore an impeachable offence. However, if the National Assembly enacts “any law that is reasonably justifi able…in the interest of defence, etc…” then the interception may be lawful. The question that follows is whether NCA 2003 is one such law.”

“So why does our government want to listen to our telephone conversations? Why has the Federal Government committed between $40-$61 million off-budget to monitor our emails, instant messaging and social media activities?” he wondered.

According to him, the Federal Government has refused to answer these questions, and when it does, its justifi cation will be the paternalistic need to provide security for all by spying on a few of us.”

Aside infringing on Nigerians’ freedom of privacy, the former BPE boss also frowned at NCC’s moves to “regulate” Lawful Interception of Communications, saying that it clearly falls outside its jurisdiction.

According to El-Rufai, the Nigerian Communications Act (NCA 2003) was originally drafted by a consortium of local and international lawyers hired by the BPE under his leadership to give legal effect to the approved National Communications Policy midwifed by the National Council on Privatization in 2001.

The goal of the legislation, he said, was to fully deregulate the telecommunications sector and give broader and deeper regulatory powers to the NCC, while restricting the Minister to policy making roles only.

Thus, he slammed NCC for pushing to regulate an affair concerning human rights which falls under the purview of the National Assembly. “As one of the fathers of the NCA 2003, I can say without any fear of contradiction that it was only meant to deregulate the telecommunications sector and no more. It was not designed or drafted to abridge the fundamental rights of Nigerians entrenched in the 1999 Constitution, and there is nowhere in the law except one of the ‘emergency provisions’ in section 148(1)c that intercepting communications was envisaged. The regulations under discussion did not pretend to derive legitimacy from any ‘emergency’ situation in Nigeria right now,” he noted.

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