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This article participates on the following special index pages:
Interception of Communications Bill - Index of articles
Interception
of Communications Bill: An analysis of the situation in other jurisdictions
Wilbert P.
Mandinde, MISA-Zimbabwe
June 13, 2006
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The
government of Zimbabwe on 26 May 2006 gazetted the Interception
of Communications Bill (hereinafter, the Bill).
In
coming up with a Bill of this nature, Zimbabwe has not necessarily
scored a first as other countries both in Africa and in other continents
have such legislations in place. However, most of these countries
regulate the interception of communications through constitutional
provisions protecting the privacy of communications, and requisite
laws and regulations to implement the constitutional requirements.
Australia, New Zealand, Canada and Hong Kong have adopted a privacy
protection regime that involves the use of Privacy Impact Assessments.
It is worthy noting that save for South Africa, African initiatives
relating to privacy have been limited. Privacy regimes are under-developed
in Africa resulting in communal considerations over-riding individual
privacy in the absence of protective legislation.
The
preamble of the Bill states that the bill aims to regulate the authorised
monitoring and interception of communications. It further aims to
provide for the interception of postal articles and communication.
It will further prohibit the provision of telecommunication services
that do not have the capacity to be monitored. The South African
Interception and Monitoring Act (hereinafter the SA Act) also has
similar provisions. The Regulation of Interception of Communications
and Provision of Communication-Related Information Act, 2002 published
in the Government Gazette on 22 January 2003 compels service providers
to retain personal data that they have collected from customers
indefinitely, and make it available to law enforcement agencies
when requested to do so.
Human
rights and electronic surveillance
It
is recognised worldwide that wiretapping and electronic surveillance
is a highly intrusive form of investigation that should only be
used in limited and very exceptional circumstances. Nearly all major
international agreements on human rights protect the rights of individuals
from unwarranted intrusive surveillance.
Article
12 of the 1948 Universal Declaration of Human Rights states:
No
one should be subjected to arbitrary interference with his privacy,
family, home or correspondence, or to attacks on his integrity
or reputation. Everyone has the right to the protection of the
law against such interferences or attacks.
This
provision is entrenched under Article 17 of the International Covenant
on Civil and Political Rights, which went into force in 1966. The
United Nations Commissioner on Human Rights in 1988 made it clear
that this broadly covers all forms of communications.
Compliance
with Article 17 requires that the integrity and confidentiality
of correspondence should be guaranteed de jure and de facto. Correspondence
should be delivered to the addressee without interception and
without being opened or otherwise read. Surveillance, whether
electronic or otherwise, interceptions of telephonic, telegraphic
and other forms of communication, wire-tapping and recording of
conversations should be prohibited.
A
number of the regional human rights treaties also legally enforce
these rights.
The
African [Banjul] Charter on Human and Peoples' Rights was adopted
on 27 June 1981. Zimbabwe is a party to this Charter, which unfortunately
omits the right to privacy for individuals, leading scholars to
conclude that Africans do not value individual privacy.
However
Article 8 of the 1950 Convention for the Protection of Human Rights
and Fundamental Freedoms states:
Everyone
has the right to respect for his private and family life, his
home and his correspondence. There shall be no interference by
a public authority with the exercise of this right except as 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, of morals, or for the protection
of the rights and freedoms of others.
The
European Court on Human Rights has heard numerous cases on the right
of the privacy of communications. It has ruled that countries must
adopt laws regulating electronic surveillance by both governments
and private parties and set out guidelines on the protections that
countries must follow.
Article
11 of the American Convention on Human Rights sets out the right
to privacy in terms similar to the Universal Declaration. In 1965,
the Organisation of American States proclaimed the American Declaration
of the Rights and Duties of Man, which called for the protection
of numerous human rights, including privacy. The Inter-American
Court of Human Rights has begun to address privacy issues in its
cases.
The
right of privacy of communications is also equally recognised at
the national level worldwide. Nearly every country in the world
recognises privacy as a fundamental constitutional human right either
explicitly or implicitly.
Scope
of the warrant for interception of communication
Section 7 of the Bill deals with the scope of the warrant for
communications interception. In terms of that section, a warrant
should set out the premises in relation to which the interception
shall take place and all the necessary details relating to the interception
target.
The
surveillance laws of most democracies either specifically define
which crimes electronic surveillance may be used to investigate
(See e.g. US law at 18 U.S.C. § 2516) or limit it to crimes that
impose a certain level of penalty. The Netherlands requires crimes
that impose imprisonment of at least 4 years. In Australia, the
minimum is seven years. In national security cases, it usually must
be proven that the target is acting on behalf of a foreign government
or organisation (See U.S. Foreign Intelligence Surveillance Act
50 U.S.C. §§ 1801-11) or an organisation that poses a serious threat
to the government of the country.
This
ensures that legitimate and normal activities in a democracy such
as journalism, civic protests, trade unionism and political opposition,
are not subjected to unwarranted surveillance because the individuals
involved have different interests and goals than of those in power.
It also ensures that relatively minor crimes, especially those that
would not generally involve telecommunications for facilitation,
are not used as pretexts to conduct intrusive surveillance for political
or other reasons.
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