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Opinions of Friday, 4 March 2016

Columnist: Ace Anan Ankomah & Susan-Barbara Adjorkor Kumapley

Interception of correspondence or communication – A dubious solution to a contrived problem

Parliament intends to pass the Interception of Postal Packets & Telecommunications Bill (“Bill”) into law. The conception of this Bill is just another evidence of the fact that several democracies are struggling to maintain a delicate balance between the prevention of crime on the one hand, and the protection of the privacy of correspondence and communications on the other.

Although every government would desire to have unfettered access to private communications, the concept of Rule of Law demands that they pit that desire against the fundamental right of the individual to privacy.

We agree that it is important to have a law that regulates the interception of private correspondence or communication, which balances the right to privacy against the need for interception of communications. This Bill is significant to the extent that for the first time, at least, there is an attempt to consolidate Ghana’s laws on interception. As at now, one has to look at about six statutes to ascertain the nature and scope of the power to intercept. To that extent, and that extent alone, the Bill is welcome.

CONSTITUTIONAL GUARANTEES OF PRIVACY

Our Constitution demands this balance between respecting the right to privacy and lawful interception. In the preamble, “We The People” solemnly declare and affirm our commitment to the “Rule of Law,” which simply means that we agree to restrict the arbitrary exercise of power by subordinating it to well-defined and established laws.

Article 18(2) specifically prohibits interference with the privacy of “correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic wellbeing of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others” [Emphases ours.] Thus the right to privacy, like most other human rights, is not absolute but is subject to constitutionally circumscribed limits, and only those.

Our Article 18(2) is not novel. It is a near-verbatim reproduction of Article 8(2) of the European Convention on Human Rights, which provides that “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” [Emphases ours.]

In the 1984 case of Malone v. The United Kingdom, the European Court on Human Rights applied Article 8(2) of the European Convention in examining the lawfulness of the tapping of Mr. Malone’s telephone calls. It found that although the tapping had been ordered following a warrant issued by the Home Secretary on suspicion that Mr. Malone was involved in some criminal activity, and such warrant had been issued in accordance with UK law, the law in question did not contain adequate safeguards.

The Court held that the phrase “in accordance with law” looked not only to having law but the quality of the law: it must be compatible with the rule of law, and must contain protection against arbitrary interferences.

The Court held that it was contrary to the rule of law if the discretion granted was expressed in terms of an unfettered power. Consequently the law must indicate, with sufficient clarity, the scope and manner of exercise of the discretion, “having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.” Interference, the court held, could only be regarded as “necessary in a democratic society” if the particular system of secret surveillance adopted contained adequate guarantees against abuse.

Soon after this decision, the UK passed the 1985 Interception of Communications Act, and in 2000, passed the Regulation of Investigatory Powers Act in response to rapid changes in telecommunications. In 2009, the UK also passed into law, a 2006 EC Directive whereby communications service providers were required to retain communications data for a year; but the European Court of Justice declared the 2006 Directive invalid in April 2014. In response to the resulting uncertainty, the UK introduced the 2014 Data Retention and Investigatory Powers Act.

A 2012 draft Communications Data Bill did not survive pre-legislative scrutiny and criticism. Derisorily called the “Snooper’s Charter,” it was opposed by the Liberal Democrats and was not taken forward in the 2012-13 session.

What is apparent is that even European democracies are still struggling to attain a balance between interception and the right to privacy. Also, we know that governments push to have fewer restrictions to interception, but the courts have stepped in to protect and uphold the right to privacy. The reasoning of the Court in Malone v. The United Kingdom remains pristine and unassailable. And for Ghana, one thing stands clear: any law that gives to any public authority even a shred of unfettered discretion to intercept for any period, should not stand the Article 18(2) test.

EXISTING LAW

Currently, in Ghana, interception is prohibited and criminal unless permitted expressly by law. However, interception is permitted under various provisions of the Security and Intelligence Agencies Act, EOCO Act, Narcotics Control Act, Electronic Communications Act (ECA), the Mutual Legal Assistance Act, and to some extent, the Electronic Transactions Act. All of these Acts are unanimous: there should be no interception without a court order/warrant. Additionally, and under the ECA, the President may authorise or demand interceptions but only through the deliberate process of issuing an Executive Instrument (EI).

And, the phone companies may intercept, but for strictly specified industry purposes, which do not include disclosure to third persons. All of these circumstances, in our view, are apt, and fit into the constitutional exceptions to the right to privacy by providing necessary safeguards against abuse, namely, (i) securing a court order/warrant, (ii) passing an EI or (iii) complying with strict legislative controls.

It might be recalled that when the government proposed to install some mechanism to ostensibly monitor incoming international phone traffic and generate revenue, the government was compelled by a public outcry to pass an amendment to the ECA that ensured that the equipment installed “shall not have the capability to actively or passively record, monitor or tap into the content of any incoming or outgoing electronic communication traffic, including voice, video and data existing discretely or on a converged platform whether local or international.” That was right and in sync with Article 18(2).

THE NEW BILL

Thus the Bill is significant in four main ways:

1. It changes the current position where a court order/warrant is required before interception, so that in cases of “urgency” the National Security Coordinator may orally authorize interception and has 48 hours to go to court (See clause 4(3) and (4));

2. It repeals the power of the President to order interception through EI’s;

3. There appears to be an indirect amendment of the other laws that have interception provisions so that now, a public officer who wants an interception warrant even from a Justice of the High Court has to first apply to the National Security Coordinator for an authorisation to obtain the warrant, and may get that for 48 hours before applying to the court (See clause 5(1)); and

4. Telecommunication network operators will now have an obligation to ensure that their networks have interception capability (see clauses 14 and 15), and are required to bear the cost of that capability (see clause 17).

The relevant questions then are as follows: what is broken with the existing legal situation that needs to be fixed by the new Bill? Is there a problem with seeking a court order/warrant before interfering with our right to privacy? Why is the requirement that the President needs an EI to authorise interceptions being removed? These questions, to us, have not been answered and cannot be answered. Simply put, it appears that the main aim of this Bill is to overreach the requirements for a court order/warrant or an EI, as the case may be, by giving the National Security Coordinator the power to authorise interception for 48 hours without any of these fetters.

What this means is that the National Security Coordinator, a person appointed by the President and who reports to the President, can intercept your correspondence/communication, listen to your phone calls, and read your letters and text messages, for 48 hours without any independent checks and balances, or guarantees against abuse; and he can simply avoid going to court by terminating the interception before the 48 hours is over. Then he can, arguably, resume the interception for another 48-hour cycle. There is no one to check to see what he is going to use that for because the Bill removes the legislative check captured in the EI requirement, and defers (potentially indefinitely) the judicial check in seeking a court order/warrant.

COMMENTS & RECOMMENDATIONS

It is our considered view that this effectively unchecked and definitely arbitrary use of executive power, whether or not backed by law, is dangerous and should not be countenanced. No public official should have or be trusted with unfettered access to private communication, even for a minute.

Parliament should look at the existing acts, particularly the EOCO, Mutual Legal Assistance, and Security and Intelligence Agencies Acts, and the conditions for interception that Parliament itself has enacted in those laws, and what the interceptor has to show to the court to obtain the order/warrant.

Further, these laws properly provide for an arbiter (especially because the person to be monitored will not – and should not – know what is happening), the judge, who will vet the grounds to see that they have sufficient bases, and if satisfied, grant the order/warrant on whichever terms that the judge would deem proper, including time limits. This should be retained.

The law as it exists, in our view, is adequate and has the key quality (the role or intervention of the judge), which makes it compatible with the rule of law and an allowable qualification to the right to privacy. There is nothing wrong with maintaining this quality and we are yet to hear any arguments that state that our judges are not competent to vet any attempt to intercept, before it happens. Relegating the role of the judge to a lower status that could be easily circumvented by simply never showing up in court is wrong and clearly unconstitutional.

CONCLUSIONS

It is hoped that the sponsors of this Bill will bear these matters in mind and take steps to amend it so as to reinstate the primary, critical and ab initio role of the courts. If they do not, we hope that our parliamentarians will be brave enough to amend it or vote it down. If Parliament fails and passes it in its current state, then we have to hope for a constitutional challenge before the Supreme Court. Hopefully, the apex court will not fail the people of Ghana.

Some have asked, “Why bother, when you have nothing to hide?” Our response is to quote the famous saying attributed to Benjamin Franklin, one of America’s founding fathers and whose head adorns the $100 bill: “Justice will not be served until those who are unaffected [by injustice] are as outraged as those who are.”

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