By Ajayi Philip Muyiwa
INTRODUCTION
“There will come a time when it is not ‘they are spying on me through my phone’ anymore. Eventually, it will be ‘my phone is spying on me’.” Phillip K. Dick just like anyone who shares a genuine interest in privacy, had such privacy-threatening words to say about the reality of communication surveillance in the present world and how bad it could get in the near future (it seems the future is here now). The current state of privacy in the modern world has been viewed from di erent jurisprudential angles and varying political views, arguably, it can be deduced that privacy is slipping through our ngers, becoming an increasingly elusive concept and we need to do something fast.
Communication surveillance involves the collection, monitoring, review and preservation of information that has been communicated across various internal and external channels within a regulated organisation. Surveillance can be conducted by government institutions, law enforcement agencies, corporations or other organisations for the purpose of intelligence gathering, security and data collection.[1]
While it is reasonable to agree that communication surveillance is targeted towards ensuring security in an increasingly threatened world, ensuring security in endangered areas and gathering information to build an intelligence framework to combat terrorism and other crimes. However, the overall practice of communication surveillance on the other hand can be said to be contrary to the privacy of citizens in a democratic society. For instance, the Nigerian constitution makes an explicit provision safeguarding the privacy of its citizens.
“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”[2]
The Nigerian Constitution explicitly guarantees the protection of the privacy of Nigerians and it is imperative that this constitutional right is upheld. This article argues that communication surveillance runs contrary to this fundamental principle as enshrined in our grundnorm and should not be pursued without justi able cause.
NIGERIA’S STANCE ON COMMUNICATION SURVEILLANCE
Nigeria as a sovereign entity in the past few decades has witnessed several military coups,[3] worrying uprise in terrorism in major geo-political zones of the country[4] and of course, in recent years, there has been a meteoric rise in cybercrime across the country.[5] It is not only reasonable that these factors are considered justi able for implementing a communication surveillance culture around the country, it also portrays the country’s readiness to tackle its national security issues head on with a goal to come out on top. However, communication surveillance as done in Nigeria poses a serious threat to the enforcement of global standard practices on data privacy and protection. Article 5 of the the General Data Protection Regulation (GDPR) makes provision for the principles of personal data processing which include: Lawfulness, Fairness and Transparency; Purpose Limitation; Data Minimisation; Accuracy; Storage Limitation; Integrity and Confidentiality; and Accountability. These principles are also present in the Nigeria Data Protection Act, the legal framework for data privacy and protection in Nigeria.[6] It is pertinent to know that these principles provide an overview of how personal data should be processed, Nigeria is not only privy to these principles but has gone ahead to domesticate it which implies that there should be intentional e orts towards upholding these principles and deter from carrying out actions that may negate them without just cause.
BALANCING THE CONTRASTING INTERESTS OF RIGHT TO INDIVIDUAL PRIVACY AND NATIONAL SECURITY
In April 2013, Premium Times reported that the Nigerian government planned to purchase equipment that would allow it conduct online surveillance on an unprecedented scale. The same year in May 2013, University of Toronto Research Center discovered that Nigeria and 11 other countries acquired Fin Fisher. It is a surveillance software that has the capability of obtaining password from computers, monitor Skype calls and even remotely turn on computer camera and sound recording so as to watch the user of the computer remotely.[7] While these actions may be justi ed by a need to bolster the National security framework across the country, it does not discredit the fact that the privacy and security of Nigerians are being heavily compromised in the process. This facilitates a need to balance the right to individual privacy and national security.
By balancing the contrasting interests of the right to individual privacy and national security, it is essential to ensure that the government is not just chasing mere shadows. Section 45 of the Constitution provides an exception to the provisions of Section 37 on the grounds of health, public safety, and public order.[8] It is equally vital that the exceptions that could justify these circumstances should be clearly stated and not be merely presented as empty words lacking clear boundaries. There should be a clear expression of these exceptions and also that security agencies and their operatives are oriented and constantly reminded to not leverage on this as an avenue to unnecessarily intrude the privacy of Nigerians and expose them to risks that in the long run defeat the purpose of surveillance.[9]
It is important that the Nigerian state does not deceptively use the vague concept of “national security” to commit blatant human rights violations. All security agencies and parastatals enabled by the Lawful Interception of Communications Regulations aiming to curtail the right to privacy must provide clear evidence that the limitation is genuinely linked to legitimate objectives established in international laws. Therefore, while limitations on the right to privacy do exist, they must align with other human rights and must not render the right to privacy devoid of meaning.
CONCLUSION AND RECOMMENDATIONS
The importance of e ectively safeguarding the right to privacy in a democratic society like ours cannot be overstated. From a legal perspective, as a fundamental right, the right to privacy is a claim that imposes a negative duty on others, including both the state and non-state actors, not to intrude into or disrupt the private spheres protected by this right.
However, in the context of law enforcement, government authorities often need to take actions that may encroach upon or interfere with an individual’s right to privacy. While individuals have the right not to have their privacy intruded upon, the government also has a legitimate interest in maintaining law and order, which frequently involves actions that intersect with the right to privacy.
My standpoint is that there is a pressing need to consistently strike a balance between these competing interests when it comes to the right to privacy and law enforcement. This equilibrium allows the state to enforce laws, maintain order, and ensure national security without undermining the fundamental right to privacy held by individuals.
Here are my recommendations:
- Curation of a more robust framework for Communication Surveillance in Nigeria providing a detailed overview of the surveillance process.
- In cases of organisations and business corporations, companies’ privacy notices and agreements should inform sta and other individuals of the presence of a surveillance technology.
- Retention policies of corporate entities and government organisations should be properly created ensuring that data garnered from surveillance is not kept longer than it should, aligning with storage limitation principles and also prevents data from breach or loss.
Ajayi Philip Muyiwa
Professional Affiliation: Mckodev Tech Lab
08147415023 philipmuyiwa2017@gmail.com, muyiwa@mckodev.com.ng
Footnotes
[1] Bloomberg Media, ‘Communication Surveillance Moves Beyond Lexicons’
<https://sponsored.bloomberg.com/article/business-reporter/communication-surveillance-moves-beyond-l exicons> accessed 23 October, 2023
[2] Constitution of the Federal Republic of Nigeria, s.37. 1999(As Amended)
[3] BBC, ‘How First Coup Still Haunts Nigeria 50 years on’
<https://www.bbc.com/news/world-africa-35312370> accessed 23 October, 2023
[4] Statista, ‘Terrorism in Nigeria – Statistics & Facts’
<https://www.statista.com/topics/7396/terrorism-in-nigeria/> accessed 23 October, 2023
[5] Business Day, Nigeria Recorded a 174% Increase in Cyber Crimes in Six Months, Here’s Why You Should Be Bothered’
<https://businessday.ng/news/article/nigeria-recorded-a-174-increase-in-cybercrimes-in-six-months-heres
-why-you-should-be-bothered/> accessed 23 October, 2023
[6] Nigeria Data Protection Act 2023, s. 24
[7] E. Nwachukwu and D. Burbidge ‘Nigerian Government to Ramp up Internet Surveillance?
<’https://www.google.com/amp/s/advox.globalvoices.org/2013/07/12/nigerian-government-to-ramp-upInter net-surveillance/amp/> accessed on 23 October, 2023
[8] Nothing in sections 37, 38, 39, 40, and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society; (a) In the interest of defence, public safety, public order, public morality or public health;
[9] Cybercrimes Act 2015, s. 39