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Govt wants to spy on you
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THE Communications Bill will give Government free rein to monitor telephone calls and electronic mail in the name of crime prevention and national security, if it is passed in the current form.
The “interception of communications” clause in the draft bill could be viewed as an attempt by Government to clamp down on its critics, including journalists. Part six of the bill gives the Namibia Central Intelligence Service (NCIS) sweeping powers to spy on private citizens without judicial oversight.
“Misa views the interception of communications provision in the bill as a retrogressive and repressive piece of law that has no place in a democratic society. The bill fails to disclose the solid objective and developmental imperative behind the proposal for interception of communications,” the Media Institute of Southern Africa said in an e-mailed response yesterday.
The provisions in the bill are similar to those in Zimbabwe’s Interception of Communications Bill, which that country uses to threaten journalists and their sources, who are already subject to a battery of repressive laws.
The proposed Communications Bill, which the Namibia Communications Commission’s website describes as a working document, allows for the setting up and running of a “telecommunications interception centre” run by the NCIS.
The Namibia Central Intelligence Service Act of 1998 states that a court warrant is required for the NCIS to intercept or monitor communication and search premises of individuals.
In the proposed Communications Bill, updated last month, a section states that the interception centre will intercept or monitor electronic communications “where any law authorises any person or institution” to do this.
It is not clear how many other laws allow for that and what the interception centre will do when it does not handle legally sanctioned requests to monitor and intercept electronic communication.
Although the interception centre is supposed to process only legally sanctioned requests for phone tapping, it seems to be otherwise unaccountable to anyone other than the Director General of the Namibia Central Intelligence Service.
The bill also states that any employee of the NCIS found guilty of having leaked or used tapped information wrongly will be fined N$20 000 or sent to jail for five years.
Misa said the provision constitutes a gross infringement on the fundamental and constitutional rights of Namibians to privacy, freedom of expression and freedom of association.
“Citizens should freely express themselves and receive information without fear of eavesdropping and interception. Citizens have the right to private, confidential and personal information which should not come under the domain of the State,” the media watchdog said.
In its current form, the bill provides for blanket interception of communication.
According to Misa the interception of communications “should be an exception rather than the rule”.
“An exception can be made for activities like money laundering, terrorism, child pornography or human trafficking. The bill should therefore narrowly define which type of communication can be intercepted and under what circumstances. Interception of communication across the board is not acceptable in a democracy,” it said.
The bill gives sweeping powers to individuals of any level at an interception centre to monitor and intercept communication.
Misa described that as “frightening and clearly open to abuse”.
“Lawyer-client confidentiality, banker-customer confidentiality, husband-wife confidentiality, doctor-patient confidentiality and all other forms of confidentiality will be breached under the proposed law,” the media group said.
It called for a system of checks and balances and judicial review of any warrant for interception.
The proposed law also compels service providers in the communications industry to bear the costs of equipment for interception, something Misa regards as an unfair financial obligation, with chances that the costs will ultimately be passed on to the consumer and render services inaccessible to the poor.
In South Africa, an application for phone tapping is made to a judge who is required to only be “satisfied that there are reasonable grounds to believe” before authorising surveillance.
This is done to establish an adequate threshold to prevent its use in questionable or marginal cases.
Most other democratic countries’ laws require a higher standard.
In some countries “probable cause” or a similar level of finding is generally required for tapping.
