Some eminent Nigerians have warned against the proposed introduction of lawful interception (LI), the so-called initiative that will give security agencies powers to access private communications, such as telephone calls or e-mail messages; saying that such move would amount to infringement of peoples’ privacy.

Though supports for the scheme were far and in between; majority of the speakers at the Joint Action Committee on Information and Communications Technology Awareness and Development (JACITAD) forum to review the draft regulation on law interception waxed worriedly at the possible manipulation and misuse of LI by power hungry government officials.

Under the initiative, in response to a warrant from a judge, lawful interception is performed simply by applying a ‘tap’ on the telephone line of the target, making it possible for security agencies in Nigeria to listen to terrorist and criminal cell phone calls and gather communications intelligence on their dark activities.

The controversial policy is being proposed by the Nigeria Communications Commission (NCC) which said it is drawing powers from Section 70 of the Nigerian Communications Act, 2003 and all other powers enabling it in that regards.

But Nasir Ahmad El-Rufai, former director-general, Bureau of Public Enterprises (BPE), said the move  “Regulate” Lawful Interception of Communications”  falls outside NCC’s jurisdiction.

El-Rufai recalled that the Nigerian Communications Act (NCA 2003) was originally drafted by a consortium of local and international lawyers hired by the BPE under his leadership to give legal effect to the approved National Communications Policy midwifed by the National Council on Privatization in 2001.

The goal of the legislation, he said, was to fully deregulate the telecommunications sector and give broader and deeper regulatory powers to the NCC, while restricting the Minister to policy making roles only.

Thus, the former director of BPE slammed NCC for pushing to regulate an affair concerning human rights which falls under the purview of the National Assembly.

He said that “The results of the policy shift and new legal framework have been impressive and the fact that virtually every Nigerian, including teenagers, has a phone as evidence of the success of the de-monopolization regime that began in 2001.

“It is on reliance of, and pursuant to sections 70, 72, 146, 147 and 148 that the NCC has issued ‘The Draft Lawful Interception of Communications Regulations (2013)’. In order to undertake a policy analytic review of the draft regulations, it is necessary to ask the following questions, which broadly fall into two classes – first to establish the legitimacy and legality of the regulations, and second to critique their substantive content and language: These include, what are the constitutional provisions regarding privacy or otherwise of physical and electronic communications between citizens?

Under what conditions does the constitution and laws allow the violation of such privacy, if any?

When the Legislature passed the NCA, did it reasonably intend to give the NCC the powers to regulate the interception of private communications, thus enabling the infringement of fundamental rights without specific legislation via an Act of National Assembly?

Do the provisions of sections 70, 72, 146-148 of the NCA, without more, adequately grant the NCC the legitimacy to issue and enact the regulations under consideration?

Assuming the Constitution and the NCA enables the NCC to issue the regulations, are they fit for the purpose of protecting the privacy of the citizen while enabling access to law enforcement agents in the public interest?

Meanwhile, NCC had stated it is only exercising the powers conferred on it by Section 70 of the Nigerian Communications Act, 2003 and all other powers enabling it in that regard.

El-Rufai, a former minister of the Federal Capital Territory (FCT), then added that, “From the foregoing, it is not only unlawful for the government to invade the privacy of citizens by intercepting letters, phone conversations or emails, but a constitutional violation and therefore an impeachable offence!

“However, if the National Assembly enacts ‘any law that is reasonably justifiable that is in the interest of the country, then the interception may be lawful. The question that follows is whether NCA 2003 is one such law”.

Also speaking, Femi Adesina, president, Nigerian Guild of Editors, said “Without prejudice to what legal experts would say, I personally believe that the draft regulation on lawful interception has more strengths than weaknesses, and will do more good than evil.

“While any law, however benign, can be manipulated and used for negative ends, the LI can also help in stemming the tide of violent crimes like kidnapping, terrorism, and other anti-social acts.  There are also enough provisions in the regulation to protect the citizenry, and give access to redress against unlawful acts.

He however, raised some concerned as regards the implementation of the Regulation.

He said: “Nigerians from different walks of life have raised concerns over the NCC draft regulation.  They include: Blackberry services could be at risk in the country as the regulation will run counter to the technical operating standards of the phones’ distinct network.  It maintains a strict policy of non-disclosure of pass codes or key, sent over an encrypted network.  And there are over three million Blackberry users in Nigeria.

“When security agencies intercept vital communication, how safe are subscribers from unscrupulous ones among them, who may end up trading with information at their disposal? Will this not even encourage identity theft?

Conversations will no longer be spontaneous, as you will have the sneaky feeling that Big Brother is listening. Government may use the regulation to crack down on opposition figures”.

Other speakers at the forum also expressed worry over the moves by the NCC, especially as it would raise concerns of a nation on State of Emergency; incur hardship on the operators who shall be trapped in legal battles with subscribers, among other fears.