| |
Back to Index
New SIM registration database law represses twin rights to privacy
and expression
Zimbabwe Human
Rights NGO Forum
October
03, 2013
The Zimbabwean
government extended its reach into the private lives of its citizens
this week by promulgating a new law establishing a central database
of information about all mobile telephone users in the country.
The Statutory Instrument 142 of 2013 on Postal and Telecommunications
(Subscriber Registration) Regulations 2013, gazetted last Friday,
raises new challenges to the already embattled rights to privacy
and free expression in Zimbabwe, increasing the potential that the
repressive state will spy on its citizens and further clamp down
on free speech.
The approval
of the Statutory Instrument clearly shows a disregard for the rights
to privacy and free expression protected by the new Zimbabwean constitution.
Mandatory SIM card registration eradicates the potential for anonymity
of communications, enables location-tracking, and simplifies communications
surveillance and interception.
State
surveillance & national security argument: The law
is clearly designed to facilitate greater State surveillance, given
that it is subordinate legislation that was passed on the basis
of powers granted the Interception of Communications Act. According
to the Statutory Instrument, telecommunications providers must each
establish a subscriber database of all SIM card holders, connecting
their phone number to their name, address, gender, nationality and
passport or ID number. The law obliges service providers to regularly
hand over copies of this data to the government, which will then
establish its own central subscriber information database. Access
to the database will be available for the purpose of law enforcement,
upon the written request of a law enforcement agent, or for “safeguarding
national security”, as well as for “undertaking approved
educational and research purposes.”
Human
rights argument: Service providers must keep data for five
years after the customer has concluded their contract. Individuals
must report the loss of their SIM card or phone, and any change
in ownership of their SIM card, and the provision of false information
to a telco makes an individual liable for six months imprisonment.
By facilitating
the establishment of an extensive database of sensitive user information,
it places individuals at risk of being tracked or targetted, and
poses risks against the misuse of private information. In the absence
of comprehensive data protection legislation and judicial oversight,
SIM users' information can be shared with government departments
and matched with other private and public databases, enabling the
State to create comprehensive profiles of individual citizens. An
individual's phone number could potentially be matched with their
voting preferences or health data, enabling governments to identify
and target political opposition, for example, or people living with
HIV/AIDs. The potential for misuse of such information, particularly
in countries with traditions of ethnic conflict and in situations
of political instability and unrest, is enormous.
SIM registration
can also have discriminatory effects - the poorest individuals (many
of whom already find themselves disadvantaged by or excluded from
the spread of mobile technology) are often unable to buy or register
SIM cards because they don't have identification documents. Undocumented
migrants are similarly disadvantaged. When mobile phones are the
most common form of accessing important avenues such as banking
and finance, this could result in exclusion from numerous vital
public services. In addition, given the additional burdens that
SIM registration places on telcos, this may result in additional
costs being passed on to a customer.
How
policy laundering has failed elsewhere: Importantly, the
justifications commonly given for SIM registration - that it will
assist in reducing the abuse of telecommunications services for
the purpose of criminal and fraudulent activity - are unfounded.
SIM registration has not been effective in curbing crime, and instead
has fueled it: States which have adopted SIM card registration have
seen the growth of identity-related crime, and have witnessed black
markets quickly pop up to service those wishing to remain anonymous
(for example, Saudi Arabia) SIMs can be illicitly cloned, or criminals
can use foreign SIMs on roaming mode, or internet and satellite
telephony, to circumvent SIM registration requirements.
Because of its
ineffectiveness and exclusionary impacts, SIM registration has been
rejected after consultation in Canada, Czech Repulic, Greece, Ireland,
the Netherlands and Poland. Yet almost all African states have now
adopted SIM cards.
Civil
Society disquiet and fear: A number of civil society actors
have already spoken out against the move by the Zimbabwean government
to join its African peers in mandating SIM registration, although
most of them have chosen to remain anonymous. Indeed, dissent coming
out of Zimbabwe has often been mounted under the important veil
of anonymity, demonstrating the current state of free speech in
the country. This law will only further eradicate democratic debate
and the enjoyment of constitutional protections in the country.
Violation
of constitution and law: In a country that has a presumption
of constitutionality, some Zimbabwean legal experts we consulted
expressed the view that section 9 the Statutory Instrument will
certainly violate the new
constitution which allows the police to get access to the user
data base to the extent that this may not be interception of communications
but an invasion of privacy. Further, they expressed the view that
the new law is irregular as a ministry that is now defunct is passing
it.
Jurisprudence
from EU Courts on the issue: Other legal experts we consulted
were of the view there is still an argument to be made that even
the establishment of such a database would infringe the right to
privacy in the constitution. Certainly the jurisprudence of the
European and British courts is that it would. This reasoning was
most recently applied by the British Court of Appeal in Catt v ACPO
[2012] EWHC 1471 where the Court considered the retention in a database
of written and photographic reports about the applicant’s
attendance at demonstrations and protests and held, at [44], “[t]he
systematic collection, processing and retention of a searchable
database of personal information, even of a relatively routine kind,
involves a significant interference with the right to respect for
private life.” In the case of publicly available information,
the test is not solely, or even predominantly, concerned with whether
the individual had a reasonable expectation of privacy, but rather
the factor of particular importance is whether data have been subject
to systematic processing and entry on a database capable of being
searched in a way that enables the authorities to recover information
by reference to a particular person (at [30], citing S v United
Kingdom).
Regional Developments in respect of the issue:
On 20 October 2013, together with Article 19, Media
Alliance of Zimbabwe, IHRDA and Privacy International, we will
be holding a Panel discussion on this and other issues, titled “Protection
of the rights to free expression, privacy for journalists and HRDs”.
This will take place during the Forum on the participation of during
the 54th Session of the African Commission on Human and Peoples’
rights, Kairaba Beach Hotel, The Gambia. The panel discussion will
be an opportunity to harness regional and international expertise
and comparative experiences on how the protection of the twin rights
of expression and privacy both at national and regional levels could
be strengthened both in policy and practice. In particular the panel
will look at what gaps, if any, are there in bringing the current
policy, legislative and practice frameworks in line with international
standards and norms, and other comparable national and regional
regulatory standards that exhibit best practice.
*Contribution to this article from Carly Nyst, of HR Forum's
Safeguard Research partner Privacy International.
Visit the Zimbabwe
Human Rights NGO Forum fact
sheet
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.
TOP
|
