It appears that governments all over the world
are bent on spying on their citizens’ private internet or phone communications
from the Middle East to Australia and to Nigeria. On Thursday June 6, 2013 the
UK based newspaper; the Guardian released on their website a court order
obtained by the National Security Agency (NSA) of U.S. directing Verizon - one of the largest phone companies in the US - to
disclose to the NSA the metadata of all calls it processes, both domestic and
international, in which at least one party is in the US. Such metadata includes telephone numbers, calling card numbers,
the serial numbers of phones used and the time and duration of calls. It does
not include the content of a call or the callers' addresses or financial
information.
To some it might seem that collecting just metadata and
not the contents of the call (what people say to each other when they are on the
phone) is not harmful to privacy or freedom of expression
and the press. However, such collection could be harmful as University of San
Francisco law professor Susan Freiwald explained in a 1997 paper thus:
“For example, some information can
be used to incriminate those who communicate with people involved in criminal
enterprises. Further, some information can incriminate even without connecting
the subject to other suspects. Several courts have held that an unusual volume
of calls made immediately before, during, and after sporting events furnishes strong
evidence that the caller is engaged in a gambling operation. Besides
incriminating those who violate the law, communication attribute information
yields evidence of those with whom one associates and the sources of one's
information”
For
more on what can be learned from people’s phone records and how these records
can harm privacy and freedom of expression and the press read this article.
It seems that the Federal Government of Nigeria had similar intentions when as reported by Premium Times on April 25, 2013, it secretly and in open violation of lawful contracting procedures (See section 48(1) of the Fiscal Responsibility Act, 2007 which provides that the Federal Government shall ensure that its fiscal and financial affairs are conducted in a transparent manner and accordingly ensure full and timely disclosure and wide publication of all transactions and decisions involving public revenues and expenditures and their implications for its finances and Section 47 (3) (iii) of the Public Procurement Act 2007 which stipulates that single source contracts are to be awarded in emergency situations such as “natural disasters or a financial crisis”) awarded an Israeli firm, Elbit Systems, a $40million contract to help it spy on citizens’ computers and Internet communications under the guise of intelligence gathering and national security.
Fortunately, for the 47 million internet users in Nigeria (according to data
from the Global Internet user, one of the Internet audit groups), the
House of Representatives on Thursday, 30th May 2013 ordered the immediate suspension of the $40 million internet surveillance contract
awarded to Elbit Systems, an Israeli Information Technology company by the
Federal Government. The resolution of the House was that no further action
should be taken on the contract until the outcome of the investigation of three
committees of the House of Representatives. The committees, namely the
committees on Human Rights, Information and Computer Technology as well as the
Committee on National Security have three weeks to
complete their investigations and make their findings known.
In as much the government may need to monitor internet
and phone communications in the interest of national security or the fight
against terrorism it must do so in a manner consistent with the 1999 Constitution
of the Federal Republic of Nigeria which guarantees the right to privacy of Nigerians
(section 37) and freedom of expression and the press (section 39) and the
African Charter on Human and Peoples Rights which Nigeria has ratified. However,
I do not think the Government necessarily needs to eavesdrop on or monitor our
internet communications in order for it to stamp out the dreaded Boko Haram or
other security challenges confronting Nigeria today. One should be able to have
a private conversation online, just as one can have a private conversation in
person. The situation in Nigeria is compounded by the non-existence of specific
data privacy and lawful interception laws.
Frank La Rue (Special Rapporteur on the promotion
and protection of the right to freedom of opinion and expression) in his report
to the 23rd session of the Human Rights Council stated how restrictions
on anonymous online communications or surveillance of internet communications
of citizens affect the freedom of expression enshrined in section 39 of the
Constitution thus:
"Anonymity of communications
allows individuals to express themselves freely without fear of retribution or
condemnation. Restrictions of anonymity in communication, for example, have an
evident chilling effect on victims of all forms of violence and abuse, who may
be reluctant to report for fear of double victimization. States should refrain
from compelling the identification of users as a precondition for access to
communications, including online services, cybercafés or mobile telephony...restrictions
on anonymity facilitate State communications surveillance by simplifying the
identification of individuals accessing or disseminating prohibited content,
making such individuals more vulnerable to other forms of State surveillance.
In this sense, restrictions on anonymity have a chilling effect, dissuading the
free expression of information and ideas. They can also result in individuals’
de facto exclusion from vital social spheres, undermining their rights to
expression and information, and exacerbating social inequalities."
In closing I wish to align myself with the
suggestions/recommendations of Paradigm Initiative Nigeria (PIN’s) Policy Brief
No. 1 entitled; Nigeria: Making A Case For Enduring Internet Freedom:
"The advised course of action for the government would be to
work toward the passing of Data
Privacy and Lawful Interception laws that:
1. Prescribe the fundamental privacy
rights of citizens and define the legal frame work around surveillance.
2. Accord data privacy more priority than
it currently has now. This is all the more urgent considering the numerous
government and private institutions that hold sensitive citizen data. These
include the National Identity Management Commission, Independent National
Electoral Commission, Nigerian Communications Commission, Federal Inland Revenue
Service, Nigerian Immigration Service, Federal Road Safety Corps, and banks.
3. Clearly outline provisions for
interception in pursuit of a safer country without sacrificing the freedom of
citizens or their constitutional right to communicate freely, including on the
Internet.
4. Provide sufficient safeguards against
abuse and opportunities for redress where infringement occurs."
I do sincerely hope that our legislators
will take into cognizance the report of the special rapporteur Frank La Rue and
especially the portion of the report quoted below when enacting the data
privacy and lawful interception laws as recommend in this write up:
"The right to privacy is often understood as an essential
requirement for the realization of the right to freedom of expression. Undue
interference with individuals’ privacy can both directly and indirectly limit
the free development and exchange of ideas. … An infringement upon one right
can be both the cause and consequence of an infringement upon the other."
