GOVERNMENT’S blueprint for tackling internet crime opens the door to spying on people’s digital communications without proper oversight and transparency.
One of the primary focuses of the Electronic Transactions and Cybercrime Bill, a copy of which is in possession, is to intercept digital communications.
Apart from regulating all manner of electronic transactions, the proposed law outlines a raft of online crimes and seeks to protect consumers who use electronic devices and telecommunication services or transact online.
The draft law also seeks to shield telecommunication service providers, such as MTC, from the actions of their customers, while strengthening measures to curb child pornography.
Information minister Tjekero Tweya announced in the National Assembly in February that he would be tabling the bill.
This announcement was followed by a civil society outcry over the lack of consultation around the provisions of the bill’s latest version, saying the last meaningful consultations were in 2010.
They also said that the last version of the draft law seen in public was dated 2013, suggesting that some provisions were already out of date.
According to the bill, and concerning intruding into people’s private communications, a police officer may seek a warrant to snoop on someone’s communications after getting permission from a judge, without having to account transparently for such intrusive measures.
Before spying, a police officer will have to obtain an intercepting warrant from a judge who would have to be convinced that a less intrusive method of investigation would not provide the information sought, and that the alleged offence was sufficiently serious to justify the method specified in the warrant.
The proposed law refers to “data message”, which is communication in the form of emails, web pages, SMSes, audio and video recordings, telegrams, telex or telecopy.
The draft law further states that a person being spied on should not be notified, and that such a warrant would be valid for three months, with the possibility of renewal for another three months.
“A member of the police may be assisted by a staff member of the Namibian Central Intelligence Service in the performance of any action authorised by a warrant issued under this section,” the bill states.
The surveillance provisions, the bill said, should be implemented with consideration of the right to privacy, as outlined in the Namibian Constitution.
As for cybercrime, the draft law seeks to punish those who use the internet to harass others.
According to the bill, a person commits online harassment if they intentionally post or send a digital message, or cause a message to be displayed with the intention to cause serious emotional distress to another person.
A culprit found guilty of such harassment faces a fine not exceeding N$10 000, or jail time of up to two years, or both.
It is also electronic harassment if a person makes a threat of violence, harm, or communicates false statements, or intends to harm someone’s reputation.
It will also be unlawful if a person sends explicit sexual messages digitally that are offensive or annoying to the person at whom such messages are directed.
The bill states that it will be considered electronic harassment if a person sends a message containing sexual activity or nude photos of a person who provided the information with expectations that it would not be shared.
Similarly, it will be a crime if a person intentionally produces child porn for systems such as computers and mobile phones.
And it makes it a crime to buy or obtain child pornography via a computer or any other digital means.
Another offence included in the draft document is that a person will be fined up to N$100 000, or face jail time of up to 10 years, or both, if they are found to have accessed a computer or a digital device, knowing that they are not authorised to do so.
That fine will be increased up to N$1 million or 20 years imprisonment, or both, if the unauthorised access was for the purpose of committing fraud or theft, or is found to be a threat to national security.
The proposed law will be implemented by a new body known as the Electronic Information Systems Management Advisory Council, which will consist of five members appointed by the information minister in a seemingly discretionary and non-transparent manner.
In addition, the proposed law will also allow digital evidence such as SMSes to be used in courts.
“In any legal proceedings, nothing in the application of the rules of evidence may be applied in such a manner that it would have the effect that computer evidence is inadmissible, on the sole ground that it is computer evidence; or if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form,” the bill reads.
The latest version of the draft law makes its appearance as the cyber threat situation seems to have escalated in recent years.
Namibia is considered one of the most vulnerable countries in the world with regard to cybercrime. Check Point Software Technologies named Namibia as the favourite target for internet criminals in 2015.
Garth Kleintjies, chief information officer at FNB Namibia, said in an article published in last year that criminals know how to move information and money out of the country using technology and the internet.
GOVERNMENT’S blueprint for tackling internet crime opens the door to spying on people’s digital communications without proper oversight and transparency.
One of the primary focuses of the Electronic Transactions and Cybercrime Bill, a copy of which is in possession, is to intercept digital communications.
Apart from regulating all manner of electronic transactions, the proposed law outlines a raft of online crimes and seeks to protect consumers who use electronic devices and telecommunication services or transact online.
The draft law also seeks to shield telecommunication service providers, such as MTC, from the actions of their customers, while strengthening measures to curb child pornography.
Information minister Tjekero Tweya announced in the National Assembly in February that he would be tabling the bill.
This announcement was followed by a civil society outcry over the lack of consultation around the provisions of the bill’s latest version, saying the last meaningful consultations were in 2010.
They also said that the last version of the draft law seen in public was dated 2013, suggesting that some provisions were already out of date.
According to the bill, and concerning intruding into people’s private communications, a police officer may seek a warrant to snoop on someone’s communications after getting permission from a judge, without having to account transparently for such intrusive measures.
Before spying, a police officer will have to obtain an intercepting warrant from a judge who would have to be convinced that a less intrusive method of investigation would not provide the information sought, and that the alleged offence was sufficiently serious to justify the method specified in the warrant.
The proposed law refers to “data message”, which is communication in the form of emails, web pages, SMSes, audio and video recordings, telegrams, telex or telecopy.
The draft law further states that a person being spied on should not be notified, and that such a warrant would be valid for three months, with the possibility of renewal for another three months.
“A member of the police may be assisted by a staff member of the Namibian Central Intelligence Service in the performance of any action authorised by a warrant issued under this section,” the bill states.
The surveillance provisions, the bill said, should be implemented with consideration of the right to privacy, as outlined in the Namibian Constitution.
As for cybercrime, the draft law seeks to punish those who use the internet to harass others.
According to the bill, a person commits online harassment if they intentionally post or send a digital message, or cause a message to be displayed with the intention to cause serious emotional distress to another person.
A culprit found guilty of such harassment faces a fine not exceeding N$10 000, or jail time of up to two years, or both.
It is also electronic harassment if a person makes a threat of violence, harm, or communicates false statements, or intends to harm someone’s reputation.
It will also be unlawful if a person sends explicit sexual messages digitally that are offensive or annoying to the person at whom such messages are directed.
The bill states that it will be considered electronic harassment if a person sends a message containing sexual activity or nude photos of a person who provided the information with expectations that it would not be shared.
Similarly, it will be a crime if a person intentionally produces child porn for systems such as computers and mobile phones.
And it makes it a crime to buy or obtain child pornography via a computer or any other digital means.
Another offence included in the draft document is that a person will be fined up to N$100 000, or face jail time of up to 10 years, or both, if they are found to have accessed a computer or a digital device, knowing that they are not authorised to do so.
That fine will be increased up to N$1 million or 20 years imprisonment, or both, if the unauthorised access was for the purpose of committing fraud or theft, or is found to be a threat to national security.
The proposed law will be implemented by a new body known as the Electronic Information Systems Management Advisory Council, which will consist of five members appointed by the information minister in a seemingly discretionary and non-transparent manner.
In addition, the proposed law will also allow digital evidence such as SMSes to be used in courts.
“In any legal proceedings, nothing in the application of the rules of evidence may be applied in such a manner that it would have the effect that computer evidence is inadmissible, on the sole ground that it is computer evidence; or if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form,” the bill reads.
The latest version of the draft law makes its appearance as the cyber threat situation seems to have escalated in recent years.
Namibia is considered one of the most vulnerable countries in the world with regard to cybercrime. Check Point Software Technologies named Namibia as the favourite target for internet criminals in 2015.
Garth Kleintjies, chief information officer at FNB Namibia, said in an article published in last year that criminals know how to move information and money out of the country using technology and the internet.
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