Judicial Oversight of the Interception of Communications

JB TJIVIKUA

THE ADOPTION OF the Universal Declaration of Human Rights by the United Nations General Assembly in 1948 ushered in international consciousness on the recognition of and respect for human rights. 

Subsequently, a number of treaties and other instruments, such as the International Covenant on Civil and Political Rights, incorporated its provisions, in some cases wholesale. 

One common and outstanding feature of all human rights treaties or instruments is the inclusion of the freedom of, or the right to, expression. The significance of this is that internationally freedom of expression is regarded as a human right that must prevail in any system that claims to uphold democratic values. 

It is one of the cornerstones of a democratic society. 

LAWFUL INTERCEPTION

Notably, Namibia’s Constitution, article 13 (privacy), explicitly states that: “No persons shall be subjected to interference with the privacy of their homes, correspondence or communications save as in accordance with law and as is necessary in a democratic society in the interests of national security, public security of the well-being of the country, for the prevention of disorder or crime or for the protection of the rights or freedom of others.” 

Hence, all lawful interceptions of communications must be carried out within the parameters of the Constitution and the relevant laws of the land. 

In many democracies, judges are responsible for pre-approving warrants for the interception of communications and the wiretapping of telephonic conversations and, where a warrant is challenged, for reviewing its validity. 

The European Court of Human Rights has said that when legislation grants executive branch officials the power to engage in covert surveillance, “it is in principle desirable to entrust supervisory control to a judge”. 

Decades ago, lawful interception was typically performed by using a physical ‘tap’ on targeted telephones, usually by accessing the digital switches of service providers. 

As the infrastructure converted to new digital network and service formats, lawful interception standards and systems were adopted to keep up with the new developments.

Nowadays, interception includes listening to calls made on a telephone or opening and reading the contents of a target’s letters or emails. 

It also includes the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. 

Most sources want anonymity for fear of retaliation. Thus, the interception of communications, by implication, would ban the practice of anonymous sources, and would seriously undermine source protection. 

This would create impediments for both investigative and independent journalism, and could have a chilling effect on media freedom. 

OVERSIGHT 

Fundamentally, the technical aspects of lawful interception are the authorised interception and monitoring of telecommunications by state organs. As such, the law must provide oversight of police and intelligence community activities even in a classified setting. 

Such undertakings must be lawfully authorised pursuant to an order from a judge, to obtain the forensics necessary for pursuing wrongdoers in combating crime and terrorism, or in a case of intelligence surveillance. 

Any process initiated to the contrary is considered tainted and unconstitutional and the “evidence” collected would have no force. 

Any warrantless surveillance of private communications is problematic and could cause public consternation as the practice is ultra vires in terms of the Constitution and national laws. 

In the Communications Act 8 of 2000, the section regulating the authorisation of the interception of communications has not yet been promulgated. The clause that deals with setting up interception centres (section 6) has also not been operationalised. 

This creates a bad precedent that cynically allows the investigatory authority to intercept communications without a warrant where unreasonable delay in obtaining a judicial authority carries with it the danger of prejudicing the object of interception. 

This inherently defeats the credibility of the institution and the legitimacy of the project. 

ENCRYPTION

The implications of introducing communication interceptions is that telecommunication service providers would have to ensure that their systems are technically capable of supporting lawful interceptions at all times. 

This implies that service providers would have to provide access to encrypted communications. Otherwise, how would they do it? 

Service providers would be forced to install hardware and software to facilitate interceptions and do monitoring as might be required by the law. This is prone to abuse for various reasons.

In summary, for the interception of communications to be lawful, it must be conducted within the parameters of the Constitution and relevant national laws.

Due process after receiving authorisation from a judge must be properly followed. In addition, lawful interception implies that the subject should benefit from domestic legal protection. However, protections are also complicated by cross-border interception. 

Unprocedural safeguards and lack of clear data protection principles, plus unregulated surveillance communications, seriously undermine the integrity of the government and can ruin source protection. 

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