Law on interception of communications - National Mirror

By The Citizen

The Newspaper Proprietors' Association of Nigeria (NPAN), at its recent executive council meeting in Abuja, expressed concern on reported plans by the Federal Government to enact a law to empower security agents to intercept and record electronic communication between individuals, as well as track data use from internet service providers and mobile networks. The association described the bill as anti-free speech and arbitrary in nature. The body urged the government to discard the proposed law that would ostensibly infract on the rights of citizens and possibly herd the country into a police state.

The NPAN's intervention is timely and appropriate. The country's 1999 Constitution (as amended), in Section 37, provides for the protection of the privacy of Nigerian citizens and their homes, correspondence, telephone conversations and telegraphic communications. We, however, concede that the same constitution lacks provisions on citizens' privacy enforceability clause. It creates a lacuna by virtue of Section 45 (1) that gives a leeway to the government to subject its citizens to laws enacted by the National Assembly on national security, defence, public safety or public order.

The issue becomes even more complicated when cognizance is taken of the fact that Section 147 of the Communications Act provides that the Nigerian Communications Commission (NCC) may determine that a licensee or class of licensees 'shall implement the capability to allow authorized interception of communications; and such determination may specify the technical requirements for authorised interception capacity'. In specific terms, section 148 of the Communications Act permits the NCC to issue an order stipulating that any communication or class of communication; to or from any licensee, person or the general public relating to any specified subject either shall not be transmitted or shall be intercepted or detained on grounds of national security or in public interest. Section 146 (1) of the act also imposes an obligation on a licensee to use its best endeavours to prevent its network facilities or network service from being used in or in relation to the commission of any offence under any law in operation in Nigeria.

In Section 146 (2) of the Communication Act, a licensee is required to assist the NCC or other authority 'as far as (is) reasonably necessary in preventing the commission or attempted commission of an offence under any written law in operation in Nigeria or otherwise in enforcing the laws of Nigeria, including the protection of public revenue and the preservation of national security.'

To protect licensees from potential litigation by an affected subscriber, Section 146 (1) and (2) of the Act provides that 'a licensee shall not be liable to any criminal proceedings of any nature for any damage (including punitive damages), loss, cost or expenditure suffered (whether directly or indirectly) for any act or omission done in good faith in the performance of the duty imposed on it.' However, it is not clear whether this protection extends to civil proceedings.

Currently, Nigeria has no specific law governing the interception of private communications in the country. It would seem the 2012 bill on interception and monitoring of communication seeks to provide the initial framework for the interception of private communications, and the development appears to be premised on various provisions of the 1999 Constitution, Communications Act and the Freedom of Information Act.

The arguments canvassed by the FG seem strong to necessitate a regulatory law on communications. More so, the current security deficit in the country appears to justify the proposed law. We caution, however, that the government should not pursue anti-people laws or laws that consciously set out to limit personal freedom and liberty. There is reasonable fear that the law could be exploited by overzealous security and other government agencies to subvert personal rights and foist authoritarian leadership on the populace.

The existing laws cite national security and national interest as overriding considerations to regulate communications in Nigeria. The concepts of national security and national interest are nebulous and might be exploited by the governing elite to serve personal and political agenda. Besides, the fact that the law is being contemplated ahead of an election year, Boko Haram or no Boko Haram, makes it suspect. Nonetheless, the FG should bear in mind that Nigeria is a democracy; and public policy should respond to this imperative.