RECENTLY, a draft piece of regulation by the telecommunications regulator, Nigerian Communications Commission, titled Draft Lawful Interception of Communications Regulations has become the focus of attention.
Taken with an allegation that the Federal Government has engaged a foreign firm in a $40 million contract to monitor electronic communication here, we can no longer carry on as if it is business as usual. In fact, business is no longer as usual given the spate of security challenges that the nation is currently grappling with.
To this end, the draft regulation, which some people are already calling the Big Brother law should command the attention of all and sundry until all issues germaine are satisfactorily resolved.
In introducing the regulation on its website, the NCC states under “Scope and Objectives of the Regulations” that “these Regulations are made to provide a legal and regulatory framework for the lawful interception of Communications in Nigeria, the collection and disclosure of intercepted Communications.
Further, the draft says “these Regulations shall….provide the legal and regulatory framework for the lawful interception of Communications in Nigeria and to put into effect the provisions of Sections 146 and 147 of the Act (the Nigerian Communications Act).
Section 147 of the Nigerian Communications Act states:
“The Commission may determine that a licensee or class of licensee shall implement the capability to allow authorised interception of communications and such determination may specify the technical requirements for authorised interception capability.”
As ICT percolates every sector of the economy and citizenry, crimes are being committed using electronic devices, particularly mobile telephones and computers. In attempting to solve some of these crimes, law enforcement agencies have found call records of targeted individuals in their cases useful, and obtained them to speed up investigations. In many cases, these have not been done with warrants from competent courts.
Section 4 of the draft regulation allows interception of communications without a warrant. I posit that will be injurious to the primacy and privacy of communications among individuals.
Again, the draft regulation says in Section 7 that “a warrant shall be granted for an initial period of three months or such lesser period as the Judge may determine based on the circumstances of the application made before the Judge and shall cease to have effect at the end of the period stipulated in the Warrant unless renewed.”
This is dangerous, as information accumulated over three months may not be germaine to the initial case but form grounds for a fresh case. This cannot be overlooked in a polity like ours, where public institutions are prone to misuse and abuse by elected officials in pursuit of political objectives.
Provisions of Part IV of the regulations is particularly alarming, as it directs all operators in the country “to install interception capabilities that allow or permit the interception of Communications.” Taken together with other provisions in Section 6, 14, 19, and others, this means that our communications are on record, and can be pulled out at anytime against anybody for any purpose. But then, who bears the cost of these?
My own take on the draft regulation is that it should be a legislative issue, subject to all the processes of public hearings and debates. Since the law allocates responsibilities to various entities, it should be the outcome of a legal process by a competent legislative house. Nothing less will serve our purpose.