By AfrikTimes spoke with Barrister Dotun Bhadmus Olawale, a Senior Associate at Health Ethics and Law Consulting, about the legal and ethical issues surrounding wiretapping in Nigeria.
Could you please tell us a little about yourself, your area of expertise, and how many years you have been practicing law?
My name is Dotun Bhadmus Olawale, I am a Senior Associate at Health Ethics and Law Consulting, I have been practicing law for 8 years now, having been called to the bar in 2018. I practice specially in health law and data protection.
Can you explain what wiretapping is and how it works?
Wiretapping (also called interception or lawful/illegal interception) is the taking, copying or listening in on someone’s private communications, for example telephone calls, text messages, emails, or other electronic messaging while those communications are in transit. Technically it can be done at different points: on the user’s device, within a telecom operator’s network , or by intercepting the data stream on infrastructure such as routers or base stations. Interception can capture the content, which are the actual words, and metadata such as who called whom, when, duration and location. End to end encryptions are one of the most effective ways of blocking wiretapping.
Which Nigerian laws regulate wiretapping, and who is legally allowed to approve it?
Key sources in the country include the Constitution, the Cybercrimes (Prohibition, Prevention, etc.) Act, telecoms law and the NCC’s interception regulations, and the national data protection regime. The Constitution guarantees the privacy of citizens’ homes and communications. The Constitution of the Federal Republic of Nigeria 1999 provides the constitutional privacy baseline. The principal criminal statute that deals with unlawful interception of electronic communications is the Cybercrimes (Prohibition, Prevention etc.) Act 2015 and its later amendments or implementing instruments, which criminalises unauthorised interception. Section 12 more particular prohibits unlawful interception, providing for an imprisonment of 2 years or a fine of 5 million Naira or both.
Are there situations where wiretapping is permitted, or is it always unlawful?
Wiretapping is not entirely unlawful; one lawful method of wiretapping occurs when there are reasonable grounds to believe that the content of electronic communications is necessary for a criminal investigation or proceedings. In such cases, a Judge may, based on sworn information, order a service provider to use technical means to intercept, collect, or record the content and or traffic data of specified communications transmitted via a computer system, or to assist competent authorities in doing so, or authorize a law enforcement officer to collect or record such data directly using technical means. Under the Lawful Interception of Communications Regulation 2019, a licensee is required to comply with a Judge issued warrant that authorizes them to intercept communications, disclose intercepted data as specified, or assist foreign authorities under international mutual assistance agreements. Such action is only permitted when there is no other lawful means to investigate the matter. A Judge may issue a warrant only if it is necessary under the regulations and if the information sought can only be obtained through lawful interception of the specified communication. Warrants are typically required when interception is necessary to protect national security, prevent or investigate a crime, safeguard Nigeria’s economic well being, respond to public emergencies, or implement Nigeria’s obligations under international mutual assistance agreements. Interception may also be lawful without a warrant in certain circumstances. This includes situations where one of the parties has provided clear, provable consent or where a party to the communication reasonably believes there is a threat to human life or safety.
If someone wanted to carry out wiretapping legally, what is the proper process they must follow?
Identify legal basis. There must be a lawful ground such as an active criminal investigation or a national security matter. Apply for a court order. Such person or institution may secure a court warrant or other statutorily permitted written authorisation. The documents and standard required depend on the specific law or regulation. Notify the telecom operator by presenting the court order to the telecom provider. This is presented to the licensee or operator so the operator can enable interception or provide the requested data in accordance with the NCC Regulations. There must also be limitations and minimisation. Orders should be limited in scope such as targets and duration and should use the least intrusive means. Only the minimal data necessary should be taken. Intercepted material must be handled securely and retained or destroyed according to the Regulations.
How does the law protect citizens from having their private conversations accessed without consent?
The law provides a constitutional guarantee of privacy for homes and communications which limits state interference. There are also criminal prohibitions as unauthorised interception is an offence under the Cybercrimes Act and related regulations, with penalties for interceptors who act without lawful authority, particularly under section 12 of the Cybercrimes Act. Regulatory safeguards also exist through the NCC’s Lawful Interception Regulations which set procedural safeguards for how operators and authorised agencies may intercept, store and destroy intercepted communications. These include chain of custody requirements, retention limits and authorised agency lists. These safeguards must be followed strictly to ensure citizens’ privacy. There is also the data protection framework. The Nigeria Data Protection Act and accompanying instruments impose duties on controllers and processors to protect personal data and provide remedies for breaches and unauthorized access through the use of technical and organizational measures. They work alongside interception rules to protect privacy and offer civil remedies.
With modern technology making interception easier, what ethical concerns should individuals and authorities be aware of?
Scope creep and mass surveillance are major concerns because network level interception tools can be used beyond targeted investigations, which risks bulk collection and long term profiling. Public interest groups have objected to broadly worded interception rules. There is also the issue of proportionality and necessity. Even where interception is lawful, it should be proportionate to the investigative need and used only when less intrusive options are inadequate. Transparency and oversight are also important because independent judicial and regulatory oversight, parliamentary scrutiny and audit trails are necessary to prevent abuse and maintain public trust, although there is currently a lack of oversight with technological advancement outpacing regulation. The security of intercepted data is another concern because interception creates highly sensitive datasets and if they are not adequately protected they can be leaked and harm the subjects involved. There is also the impact on free expression and chilling effects because routine or opaque surveillance can discourage lawful speech and association.
