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This article participates on the following special index pages:
Interception of Communications Bill - Index of articles
of Communications Bill 2006: An ISP's perspective
MANGO Internet Service Provider
April 13, 2006
represents the personal views of one Internet Service Provider (MANGO)
in relation to the above Bill, but their concerns are widely felt
amongst the local Internet community.
Bill follows two previous attempts to legitimise the interception
of communications by the government:
and 103 of the Posts and Telecommunications Act (No 4/2000), which
provided for the interception of communications if the President
considered it necessary "in the interests of national security
or the maintenance of law and order", and for him to give
service providers "directions of a general character as appear
to the President to be requisite or expedient in the interests
of national security or relations with the government of a country
or territory outside Zimbabwe."
A draft amendment
to the standard franchise agreement between ISPs and TelOne which
included provisions that required service providers to block "objectionable,
obscene, unauthorised or any other content, messages or communications
infringing copyright, intellectual property right and international
and domestic cyber laws, in any form or inconsistent with the
laws of Zimbabwe". Service providers were required to "provide,
without delay, all the tracing facilities of the nuisance or malicious
messages or communications . . . to authorised officers of TelOne
and Government of Zimbabwe/State Government, when such information
is required for investigations of crimes or in the interest of
national security. Cyber Laws as and when framed shall be applicable."
It also stated: "The use of the network for anti-national
activities would be construed as an offence punishable under the
Zimbabwe Law or other applicable law."
The Law Society
challenged the constitutionality of Sections 98 and 103 of the Posts
and Telecommunications Act in the Supreme Court, especially in so
far as they potentially violated the right to lawyer/client privilege
and the right to freedom of expression. They won the case when the
Court ruled in March 2004 that these Sections violated Sections
18 (the right of an accused person to a fair trial) and 20 (the
right to freedom of expression) of the Constitution.
judgment of the Supreme Court of Zimbabwe was delivered by the Chief
Justice, the Honorable Mr Justice Chidyausiku, and agreed entirely
with the sentiments and concerns of the Law Society of Zimbabwe
and held that: -
sanctity of lawyer/client privilege is largely applicable in the
domain of litigation or court proceedings and is not constitutionally
guaranteed. However, the breach of the lawyer/client privilege
almost invariably led to the violation of one's entitlement to
a fair trial guaranteed under Section 18 of the constitution;
the protections of the Constitution to the freedom from interference
with correspondence or other communications were not absolute
rights and they may be restricted or circumscribed, the unfettered
power conferred upon the president to intercept correspondence
and communications were too broad and over reaching to be reasonably
justified in a democratic society.
this ruling and observation, the Chief Justice noted that there
were in fact no limitations or restrictions whatsoever to the authority
of the President, no guidance to affected citizens as to how they
could avoid the consequences of the provisions complained of and
no legal resource or safeguard for the innocent." [Summary
taken from a Law Society report on the judgement.]
to the proposed amendment to the Internet Service Franchise Agreement,
the ISPs attempted to seek clarification from TelOne over the wording
of the amendment as it also seemed extremely broad and undefined
in its scope, and referred to "Cyber Laws" that did not
exist. The reference to "anti-national activities" without
any definition or reference to law was particularly disconcerting,
and is an indication of the mindset that has led to the current
proposed legislation. As no response was received from TelOne, ZISPA
members did not sign the amendment.
of the Bill
no official copy has yet been published, the draft Interception
of Communications Bill currently in circulation states that its
an interception of communication monitoring centre and for the
appointment of persons to that centre whose function shall be
to monitor and intercept certain communications in the course
of their transmission through a telecommunication, postal or any
other related service system
The Bill says
nothing about the purpose for which the communications shall be
intercepted, but it is implicit that they may be used as evidence
in criminal proceedings.
of the Bill of interest to telecommunications service providers
- The Minister
of Transport and Communications may issue warrants for the interception
of communications on application by the Chief of Defence Intelligence,
the Director-General of the President's Department of National
Security, the Commissioner of the Zimbabwe Republic Police and
the Commissioner-General of the Zimbabwe Revenue Authority or
by any nominee of any of the above. The applications should normally
be in writing, but in urgent or exceptional circumstances oral
applications can be made.
may be issued where the Minister has reasonable grounds to believe
that "a serious offence has been or is being or will probably
be committed or that there is threat to safety or national security
of the country" or that "the interests of the country's
international relations or obligation(s) are threatened".
are valid for a period of up to 3 months but may be extended by
further periods of up to a month at a time, indefinitely.
- Service providers
are required to install at their own cost "hardware and software
facilities and devices to enable interception of communications";
to store communication-related information; to establish connections
to the monitoring centre to route the intercepted communications
to the centre; and also to store detailed identity information
on all their customers.
providers are prohibited from disclosing any information about
warrants they receive and communications intercepted except to
persons are entitled to order the disclosure of security keys
used to protect information where considered necessary on grounds
of national security, preventing and detecting crime, and in the
interests of the economic well-being of Zimbabwe.
for failure to comply with provisions of the Bill range from a
fine to from three years to five years maximum imprisonment.
parties may appeal first to the Minister, and then to the Administrative
of Service Providers
draft Bill raises many issues of concern to service providers, given
that it will legalise the monitoring of e-mail and Web downloads
by a targeted individuals or organisations. It will also allow any
other form of Internet service to be intercepted as well, including
instant messaging, VOIP calls, and financial transactions in particular.
Specific concerns are:
and confidential personal information, as well as confidential
commercial or financial information may be intercepted that could
be abused in many ways.
- There is
a serious danger of political abuse of the provisions of the Bill
to target political opponents of the government, or indeed of
members of rival factions of the ruling party. Human rights organisations
and NGOs also would seem to be at particular risk as they are
already regarded in many cases as being enemies of the state.
- The Bill
will stifle freedom of expression, and frighten people from undertaking
perfectly legal communications that they fear could be intercepted
and used against them. In the past this fear has resulted in chain
letters asking people not to forward any e-mails with political
comment or political jokes.
- There is
no provision for any judicial or parliamentary oversight of the
implementation of the Bill as a check on possible abuse by the
Minister or his officials, especially given that the Minister
is extremely wide discretionary powers to determine whether a
warrant may be issued.
- The Bill
is very vague in its provisions, and extremely broad in scope,
without precise definitions of terms such as "national security",
"national economic interests", or "interests of
the country's international relations or obligations".
can be issued to intercept communications even when no criminal
activity is suspected, but simply on political grounds such as
when "the interests of the country's international relations
or obligation (sic) are threatened". This means that any
organisation involved in legal international lobbying considered
hostile to the government could be targeted.
- There is
no guarantee that communications of the targeted subject that
are not related to the matters raised in the application for the
warrant will not be intercepted, or that communications of totally
innocent third parties will not be intercepted at the same time.
- Service providers
are not going to be able to assure their clients that normal personal
and business communications will be free from interception and
possible abuse, to the detriment of secure financial transactions
in particular, and indeed are not even going to be able to advise
their clients on what they should not be doing to avoid becoming
subject to the provisions of the Bill.
- Service providers
are going to have to bear the potentially extremely high capital
and forex costs of the necessary hardware and software, whose
requirements will not be known until the associated regulations
are published in due course. These costs could be sufficient to
drive smaller providers out of business.
- Service providers
are going to have to undertake the massive and expensive task
of obtaining detailed identification details for all their current
and future clients.
- There are
no details provided as to what communications data will have to
be stored by service providers, and for how long, let alone any
information on the purposes for which all this data plus the content
of intercepted communications will be used by the governmen
- Section 9
of the Bill makes provision for authorising the use of data that
has been obtained by unlawful interception of communications,
provided that the court retrospectively approves such use in criminal
of this kind does nothing to improve the regulatory environment
by dealing with issues of real concern, such as using the Internet
to hack into computer systems or purvey child pornography, but
simply adds to general demoralisation, causing alarm and despondency,
and deters investment in the sector, especially in the area of
e-commerce. As a result, the country will lag even further behind
to the Bill
appears to be a most invidious piece of legislation that should
be strongly opposed. It is yet another nail in the coffin of an
already struggling telecommunications sector. Measures that should
be considered by affected parties in opposition to this legislation
all interested parties, especially industrial and commercial organisations,
trade union and non-government organisations about the dangers
of the Bill with a view to forming a consolidated lobbying group
to oppose the passage of this Bill in its current form.
- Making presentations
to the Parliamentary Portfolio Committee
members of Parliament
- Holding public
meetings and presentations about the contents of the proposed
the issues relating to this legislation locally and internationally
using the media and especially the Internet.
- If the Bill
is passed by Parliament, then petitioning the President not to
sign it into law (a tactic that succeeded in the case of the Private
Voluntary Organisations Bill)
- If the Bill
is signed into law, then challenging in the courts all warrants
issued to and demands made upon service providers in terms of
the Act and associated regulations.
- Taking up
the human rights issues with the African Commission for Human
Rights on the grounds that the legislation violates the African
Charter on Human and People's Rights.
information on legal methods of ensuring the confidentiality of
communications - especially the use of encryption, including the
use of encrypted web-mail services such as HushMail, and third-party
proxy services when browsing the web.
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