Spy bill spooks experts

THE controversial ‘spy clause’ in the new Communications Bill may not only be unconstitutional, but also in conflict with certain fundamental aspects of the National Intelligence Service Act, as well as prohibitively expensive to implement, The Namibian has established.

Part 6 (Interception of Communications) of the Bill has been widely slammed by human rights activists and legal sources as being ‘blatantly unconstitutional’ in that it will violate the right to privacy as protected by Article 13 of the Namibian Constitution.Others accused the Namibian Central Intelligence Service (NCIS) of attempting to smuggle the highly controversial seven clauses through Parliament by hiding it in the desperately needed new Communications Bill, now seven years in the drafting.WILL HIT PEOPLE’SPRIVACY, POCKETSThe spy clause, if implemented in its current form, will lead to skyrocketing telephone and Internet fees – leaving Namibia lagging ever further behind on the information highway, experts warn.These clauses, some suggested, should have been addressed by amending the National Intelligence Service Act (Act10 of 1997) directly. Imposing it on the telecoms industry desperate for a coherent law, the intelligence service was trying to force the issue through Parliament, one legal source said.The proposed Articles 70 to 77 (whose late addition had held back the tabling of the Bill until now) would force telecoms and Internet providers to re-route all telephonic and Internet traffic via so-called ‘interceptor centres’, run by NCIS agents. All costs – including investments, technical, maintenance and operational costs – would have to be borne by the telecommunications and Internet service providers as part of their legal duties in this regard.Namibia’s six Internet service providers (ISPs) would also have to assist in handing over any key code needed to render information so obtained intelligible, as well as make sure no-one can use encryption technology on their networks.Should any telecom or Internet provider fail to adhere with these, their licences could be refused or revoked: Article 74(1) states that ‘[a]ny duty imposed by this Part of any regulation made in terms of this Part may be enforced as if such duty were a licence condition imposed under this Act’.The NCIS Director General is also granted the right to specify what kind of equipment and software the telecom and Internet providers have to install on their behalf, in terms of Article 70(3).EQUIPMENTOnly three of four companies, mostly of Israeli origin, are capable of manufacturing such equipment, which would cost in the region of N$40 to N$50 million per system, one expert told The Namibian. Interestingly, one of these is Verint Systems, a subsidiary of Comverse Technologies Inc – which was owned, until his flight to Namibia two years ago, by fugitive Israeli businessman Kobi Alexander. He was not available for comment.Implementing such a system to monitor Internet traffic would mean that ISPs would have to pass on the costs to their subscribers. ‘This could mean connectivity fees will have to be increased ten or twenty-fold,’ one IT manager said.Ongoing and constant surveillance of any part of the telecommunications system is however illegal – a fact seemingly overlooked by the legal drafters of the Communications Bill.The only law that does allow for electronic monitoring of this nature is the Namibia Central Intelligence Act (Act 10 of 1997) and includes the monitoring of communications, bank accounts and mail – but only under very strictly prescribed conditions. Article 25 (Issue of Direction) states that the NCIS may only monitor personal communications under a High Court warrant, obtained by written application after consultation with the Inspector General of the Police. Such an order may only be granted if the NCIS Director General has shown cause that a suspect’s communications posed a real threat to Namibian state security and that other investigative measures have failed.Such monitoring measures may only be granted for three months, and only renewable for another three months by order of a judge. It also precludes any ‘fishing expeditions’: targets of investigation, including the types of communication and person(s) to be investigated, has to be clearly specified in the NCIS DG’s written application, in terms of Article 25 (c) – (f).’NO DISSENT’Requests for monitoring communications under these conditions may be brought by other State offices, ministries or agencies, under the general terms as set out under Section 1 of the NCIS Act. Such communications specifically exclude lawful advocacy, protest or dissent.Concerns by parliamentarians in 1997 of intelligence gathering being politically abused also led to the inclusion of a provision that the NCIS should at all times remain politically neutral. ‘[..No] act [shall be] performed that could give rise to any reasonable suspicion that the Service is concerned in the furthering, protecting or undermining the interest of any particular section of the population or any political party or organisation in Namibia,’ according to Section 1.(e)).But oversight of the NCIS’s monitoring activities have been non-existent. Article 32 of the NCIS Act requires them to report to the Parliamentary Committee on Security, but three current or former MPs spoken to said this committee has all but ceased to exist.It could also not be established if any electronic surveillance application had ever been made to the High Court, as the law would require. Former Swapo members who have joined the opposition party Rally for Progress and Democracy however widely believe that all their communications are being monitoredUnauthorised monitoring – without a legal warrant – of any kind of communication via the telephone lines, or intruding on any premises to examine, copy or remove of any documents or other materials is – unless in the interest of State security – punishable by a N$20 000 fine and/or a five-year prison sentence. * John Grobler is a freelance journalist; 081 240 1587- See also today’s SMSes on page 6