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  • 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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