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Nigeria: New Wire Tapping, Cyber Crimes Bill in Nigeria




Nigeria: New Wire Tapping, Cyber Crimes Bill in Nigeria
Nigeria: New Wire Tapping, Cyber Crimes Bill in Nigeria



http://allafrica.com/stories/200610190334.html 

This Day (Lagos)
ANALYSIS
October 18, 2006

By Eijeagbon Ohicheoya
Lagos

There is an important executive Bill before the Nigerian National 
Assembly called the "Computer Security & Critical Information 
Infrastructure Protection Bill" ("the Bill"). Because of the importance 
of this Bill, we would consider in this paper, the highlights of the 
provisions of the Bill, share the highlights of other similar 
legislations in the United Kingdom, the United States of America, 
Australia, South Africa, Canada and Switzerland in the greater 
expectation that the laws in these other jurisdictions would further 
assist the Nigerian National Assembly and the Nigerian people in having 
a better Law on wire tapping, computer and cyber crimes, and 
anti-terrorism.

Wire Tapping, Cyber Crimes & Anti-Terrorism Bill

The introductory part of the Bill describes its objectives to include " 
secure computer systems and networks and protect critical information 
infrastructure in Nigeria by prohibiting certain undesirable 
computer-based activities ..". This Bill seeks to create legal liability 
and responsibility for modern global crimes carried on over a computer 
or computer systems, i.e. the internet.

Some of these crimes, which carry penalties of fines ranging from the 
average sum of N100,000.00 (One Hundred Thousand Naira) to terms of 
imprisonment ranging on the average from six months imprisonment, 
include: -Hacking and unlawful access to a computer or a computer 
network.Spamming - this is unsolicited mails - fraudulent electronic 
mails, etc.Computer fraud, computer forgery, system 
interference.Identity theft and impersonation on the 
internet.Cyber-terrorism, cybersquarting, misuse of computer for 
unlawful sexual purposes, etc.

Unlawful Interception of Communications & Mandatory Retention.Section 3 
of this Bill makes it an offence for any person, without authority or in 
excess of such authority where it exist, to access any computer or 
access a computer for an unlawful purpose. It is also an offence for any 
person to disclose any password, access code or disclose any other means 
of access to any computer program without lawful authority.

Section 12 of this Bill requires every service provider to keep a record 
of all traffic and subscriber information on their computer networks for 
such a period as the President of the Federal Republic of Nigeria may by 
Federal Gazette, specify. Service Providers are further required to 
record and retain any related content at the instance of any Law 
Enforcement Agency.

This Bill also allows any Law Enforcement Agency in Nigeria, on the 
production of a warrant issued by a Court of competent jurisdiction, to 
request a service provider to release any information in respect of 
communications within its network, and the service provider must comply 
with the terms of the warrant.

This Bill seeks to ensure the protection of the privacy and civil 
liberties of persons by requiring that all communications released by a 
service provider shall only be used for legitimate purposes authorised 
by the affected individual or by a Court of competent jurisdiction or by 
other lawful authority.

All law enforcement agencies carrying out their duties under this Bill 
must also have due regard to the constitutional rights to freedom of 
privacy guaranteed under the 1999 Nigerian Constitution and " take 
appropriate technological and organisational measures to safeguard the 
confidentiality of the data retained, processed or retrieved for the 
purposes of law enforcement".

To ensure compliance by the service providers or body corporate, who are 
the providers of all form of telecommunication services in Nigeria, this 
Bill recommends that any breach of the provisions of the contemplated 
Law, by these persons, shall on conviction be liable to the payment of a 
fine of not less than N5Million. In addition, each Director, Manager or 
Officer of the service provider shall be liable to a fine of not less 
than N500,000 or imprisonment for a term of not less than three years or 
to both the fine and the term of imprisonment.

The first and fundamental concern with this Bill is that there are no 
internal and external checks and balances provisions whatsoever in the 
Bill. There are no mandatory reporting procedures to either the Nigerian 
parliament or the Nigerian judiciary on the activities of law 
enforcement agencies in carrying out these wire tapping or lawful 
interception activities. The law enforcement agencies that have the 
responsibility of carrying out the provisions of this Bill are not 
enumerated in the Bill. There is no independent commissioner to monitor 
these activities.

There is also no provision for award of compensation where the civil 
liberties of individuals are breached neither is there provision for 
reporting to the citizens after the wire tapping activities have ceased. 
In jurisdictions with a longer history of democracy and wire tapping 
activities, where these checks and balances are regulated by Statutes, 
allegations and investigations of abuses continue to occur.

There is secondly, in the matter of obtaining a warrant or release of 
information for legitimate reasons, a recurring reference to either a 
Court of Law or " any other lawful authority " for obtaining either the 
warrant or the information. There is no enumeration or definition 
anywhere in the Bill, as has been done in other jurisdictions, of whom 
or what constitutes "lawful authority". It is recommended that this is a 
very good loophole for a breaching government to avoid an independent 
judiciary and constitute itself into ".. any other lawful authority" 
from where the civil liberties of individuals would be continuingly 
breached.

The treatment of evidence obtained from wire tapping activities in 
criminal proceedings are not described anywhere in this Bill. While 
there are civil law provisions requiring that illegally obtained 
evidence are not admissible without special circumstances been 
disclosed, this Bill would do well to emulate the laudable provisions in 
wire tapping legislations in the United Kingdom and the United States of 
America on the treatment of evidence obtained from wire tapping 
activities in criminal proceedings.

There is further a problem with the definition of what constitutes 
traffic information under this Bill? What also is "content" under this 
Bill? Would traffic information also include the recording of voice 
communication by service providers? If traffic information would include 
voice communication, who would be responsible for the huge storage and 
preservation costs of these voice communication? In the United States, 
statutes on wire tapping or lawful interception require that the 
government reasonably compensates individuals for expenses incurred for 
providing facilities and technical assistance in wire tapping 
activities. In Canada, service providers are provided with some costs 
savings for their networks whilst in Netherlands, the government had to 
grant some moratorium on compliance and waiver when some service 
providers faced bankruptcy as a result of the huge technological costs 
of ensuring compliance. Requiring the service providers to alone bear 
these expected huge costs would mean that the customers in Nigeria would 
ultimately bear the costs.

A fifth concern is the requirement by this Bill for service providers to 
deliver intercepted communications and data to locations of law 
enforcement agencies which naturally would be outside those of the 
service provider. There are no procedures for securing and or 
guaranteeing that these external deliveries would not compromise the 
network of the service providers or the civil liberties of individuals 
by persons other than the authorised service providers. There is 
currently no available evidence of serious hacking into the networks of 
the service providers in Nigeria even though there is available 
literature on the internet that there are technologies with which GSM 
communications can be monitored without the knowledge of the parties or 
of the service providers.

A sixth major concern with this Bill is that it imposes further duties 
of assistance in the identification, apprehension, legal prosecution, 
trailing and confiscation of proceeds of offenders for cyber crimes and 
unlawful interference with communications on the service providers and 
other relevant body corporate. These are onerous law enforcement 
responsibilities sought to be imposed on private businesses especially 
as there are also serious security risks of injury from the offenders 
that service providers and relevant body corporate may be ill equipped 
to provide for themselves.

A seventh concern is the requirement that in special circumstances a 
service provider or body corporate could be required to release 
information without a court warrant. There are no procedures for 
ensuring that this would only occur in cases of extreme emergencies and 
that immediately information is obtained, an equally urgent effort would 
be made to secure a court warrant as is done in the United States for 
example.

An eight concern with this Bill is the provision that the President of 
the Federal Republic of Nigeria could direct the law enforcement 
agencies to make such rules and regulations giving effect to the 
provisions of this Bill. This provision appears to be an over 
concentration of powers on the executive arm of government. Also, this 
provision appears to be making the law enforcement agencies both the 
accusers and the judge in relation to their own procedures? An 
independent body should be constituted for this and other aspects of 
giving full effect to this Bill.

Conclusion

It is necessary that further amendments are made to this Bill before it 
is passed into Law. International conventions on human rights 
preservation to which Nigeria is a signatory must be respected. Full 
definitions of key words like " . any other lawful authority ", 
"content", etc is highly recommended. An independent body should be 
constituted to oversee and interface between the executive, law 
enforcement agencies and the Nigerian parliament on the activities of 
cyber crime enforcement and applications in Nigeria. Provisions should 
be made for compensatory damages to be paid to citizens whose rights are 
infringed in any way by any interception activity found to be either 
wrongful or unwarranted. Further enlightenment of the members of the 
public on the application of this Bill and the civil liberties of 
citizens is also recommended as many Nigerians are not aware that this 
Bill is before the National Assembly.

Copyright 2006 This Day. All rights reserved. Distributed by AllAfrica 
Global Media


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