The Unlawful Accessing of Cellphone Information Must Stop

Before the advent of constitutional democracy in Namibia, colonial law enforcement agents rummaged through people’s homes and offices with impunity in an unrestrained search for evidence of criminal activities, more so in so-called political and security cases.

These intrusions of privacy were mostly and yet notoriously warrantless.

To repudiate past law enforcement practices that subverted and eroded the privacy of individuals, Namibia’s Constitution affords protection under article 13.

It prohibits interference with privacy except in accordance with law and as necessary in a democratic society in the interests of public safety, etc.

The Constitution further directs that searches of people or their homes would only be justified when authorised by a judicial officer.

There is an exception to the general rule that searches must be authorised by judicial officers: Where a delay in obtaining a warrant carries the danger of prejudicing the object of search, a warrantless search must be conducted in accordance with procedures prescribed by an act of parliament so as to preclude abuse.

‘MINICOMPUTERS’

Since cellphones were introduced to Namibia during or about 1995, they have become a pervasive and insistent part of everyone’s life as they differ both quantitatively and qualitatively from other physical objects people may use on a daily basis.

In this digital age, a cellphone is a minicomputer with immense storage capacity which can carry a cache of private or official data.

A medical doctor or traditional healer may store confidential patient data, a lawyer may store privileged client information, a journalist may carry details on the identity of sources, while a state functionary may store state secrets.

KEY RULING

The Supreme Court of the United States, in the case of Riley v California, delivered an important judgement not that long ago on warrantless searches of cellphones law enforcement agents found on an arrestee.

In that case, Mr Riley was stopped for a traffic violation but that stoppage eventually led to him being arrested on weapons charges.

This was after an officer who stopped him seized his cellphone and accessed his data.

The officer’s access to his information led to Mr Riley being arrested on weapons charges.

This would not have been possible if it was not for the intrusion of privacy by the officer who accessed his cellphone data.

Mr Riley attacked the admissibility of the incriminating evidence in the lower court, but his attack was dismissed.

The California Court of Appeal also dismissed his appeal.

The Supreme Court of the United States, however, ruled in his favour.

It found that the Fourth Amendment to the American Constitution – which is more or less similar to article 13 of Namibia’s Constitution – was a response to the general warrants of the colonial era which allowed British colonial officers in the US to rummage through homes in an unrestrained search for evidence of criminal activity.

The court emphasised that modern cellphones are not just another technological convenience.

The data contained on cellphones and what it may reveal, holds – for many citizens – the privacies of life.

The court therefore found that where law enforcement agents have reasonable grounds to want to access data on a cellphone in their possession, they must seek a warrant.

WORRYING TREND

In Namibia, some law enforcement agents have adopted a disturbing practice of immediately taking a cellphone found on a suspect who has been arrested.

In most cases, suspects are asked to provide the passwords for access to data on their cellphones, in terrorem (into/about fear), while dealing with the immediate psychological and emotional trauma of being arrested.

This is a direct result of the fact that many Namibians are oblivious to and ignorant of their right to the constitutional protection of their privacy.
As a result, in most cases arrestees readily accede to unlawful requests for access to cellphone data without assistance by a lawyer.
I am of the opinion that once a cellphone is in the hands of members of the police, they (investigating agents) must, in view of the constitutional provisions of article 13, seek a warrant before accessing private data on people’s cellphones.

LET’S MAKE IT NORMAL

It has been historically recognised in democratic societies that the warrant requirement is an important working part of the machinery of the government – not a mere inconvenience to be somehow weighed against police efficiency.

Therefore, there must not be untrammelled access by the police to protected confidential and private data on cellphones, including data which has nothing to do with the suspected offence.

In case of warrantless intrusion, our Constitution requires that there must be prescribed procedures by an act of parliament to preclude abuse.

These prescribed procedures must not only exist, they must, in fact, be followed.

Accessing private data on cellphones on the basis of a warrant should therefore be the most ordinary and acceptable way of accessing data on people’s cellphones.

• Sisa Namandje is a legal practitioner and author of ‘The Law on Privacy and the Rationality Standard in Namibia’