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Legal Alert. October 2006. New Wire Tapping, Cyber Crimes & Anti-Terrorism Bill In Nigeria.
 
This Alert is also attached underneath in pdf format. The full article can be found on our web site, www.oseroghoassociates.com
In this Issue.
1. Subscribe & Unsubscribe.
2. Business Motivational Quote.
3. Legal Alert for October, 2006.
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Business Motivational Quote.
"It is no use for one to drink when many thirst" – By Alexander the Great, a Greek King.
Introduction.
There is an important executive Bill before the Nigerian National Assembly called the "Computer Security & Critical Information Infrastructure Protection Bill" ("the Bill").
The need for governments to secretly listen to and monitor conversations by suspected criminally minded persons, combat all kinds of cyber crimes and terrorist activities is now more urgent with increases and advancements in technological development and use by both the criminally minded and the non criminally minded persons.
Wire Tapping, Cyber Crimes & Anti-Terrorism Bill.
The objectives of the Bill are described 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: -
(i) Hacking and unlawful access to a computer or a computer network.
(ii) Spamming - this is unsolicited mails – fraudulent electronic mails, etc.
(iii) Computer fraud, computer forgery, system interference.
(iv) Identity theft and impersonation on the internet.
(v) 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 the lawful authority of the owner of the computer system.
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 communication 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".
Wire Tapping & Unlawful Interception of Communications.
Wire tapping, which in modern parlance is known as Lawful Interception, is described as the " ... monitoring of telephone and internet conversations by a third person, often by convert means".
It is unlawful, under the Bill, for any person to intercept any communication without the authority of the Owner of the communication. A conviction for a breach of this provision is a fine of not less than N5Million or imprisonment for a period of not less than ten years or to both the fine and the term of imprisonment.
It is mandatory under this Bill for all Service Providers to ensure that their networks are accessible and available to enable law enforcement agencies, on the production of an Order of a Court of Law or of any other lawful authority, to intercept and monitor all communications on their networks, access call data or traffic, access the content of communications, monitor these communications uninterrupted from locations outside those of the Service Providers, provided that these convert activities are for the purpose of law enforcement.
Further Duties & Assistance of Service Providers to Cyber Crimes Enforcement.
This Bill requires all Service Providers and other relevant body corporate to provide all assistance to law enforcement agencies in the prosecution of the crimes provided for under this legislation. Some of the assistance expected include:
(a) Identification, apprehension and prosecution of the offenders.
(b) Identification, tracing and confiscation of proceeds of any offence or property, equipment or device used in the commission of any cyber offence.
(c) Freezing, removal, erasure or cancellation of the services of the offender from the network of the Service Provider.
Other Cyber Crimes.
Cyber squatting. Cyber squatting is the assuming of the name or personality of another person without the consent or authority of such a person.
It is a criminal offence under this legislation for any person, without the prior authority or consent of the Owner, to intentionally use or assume the name, trade or business name, trade mark, domain name or other name registered to or belonging to another person or to a registrant or a legitimate prior user of such a name, or of the names of either the federal, state or local governments in Nigeria.
Cyber-Terrorism. Terrorism is described by this Bill to include any act which is a violation of the Nigerian Criminal Code or Penal Code, endangers life, the physical integrity or freedom of any person or causes serious injury or death, causes loss or damage to public property, natural resources, damages the environment, cultural heritage, intimidates, uses fear, coercion, promotion or sponsorship of, contribution to terrorism, or commands and incites, conspiracy to commit acts of terrorism, etc.
Cyber Terrorism can be described as the use of a computer, computer networks or the internet to commit or promote terrorist crimes. This legalisation seeks to make it an offence, once the Bill becomes Law, for any person, group or organisation that accesses or uses any computer or computer networks for purposes of terrorism or terrorist related activity.
Other Cyber Crimes under the Bill.
1. Violation of Intellectual Property Rights with the use of a computer or computer networks without the authority or consent of the proprietor of the Rights.
2. Using any computer for unlawful sexual purposes, child pornography or other related acts with minors. This attracts an average fine of over N1Million and an average term of imprisonment of not less than five years.
Concerns & Improvements on the Cyber Crimes Bill.
The intention of Wire Tapping, Cyber Crimes and Anti Terrorism Bill is in the most part a commendable one. However it is not a complete or "perfect" document as there are various sections of this Bill which if passed into Law, in its present form, would infringe the civil liberties of individuals to privacy, in breach of the United Nations Universal Declarations on Human Rights and the African Charter on Human Rights to which Nigeria is a signatory.
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 lawful interception 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 of civil rights of citizens continue to occur.
There is secondly 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 non complying 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 is 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/adjustments 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.
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