Africa-Press – Namibia. NAMIBIA IS QUICKLY moving closer to becoming another African surveillance state, as legally questionable state surveillance-enabling regulations are pushed towards implementation under the guise of fighting crime and protecting national security.
Since the gazetting of regulations on 15 March, the full implementation of Part 6 of the Communications Act of 2009 is looming, and so too is the growing threat of large-scale state violation of the constitutionally protected right to privacy and associated rights.
Part 6 of the Communications Act and its new regulations enable the interception of all telecommunications by police and national intelligence officials through mandatory SIM card registrations, and extensive and expansive data collection and retention obligations and measures imposed on telecommunications service providers.
However, critical scrutiny of Part 6 of the Communications Act and the recently publicised regulations have pointed to a lack of substantial data protection and transparent, strong oversight mechanisms to safeguard against surveillance overreach and abuse. These interpretations are contained in a recently published critique by Dianne Hubbard of the Legal Assistance Centre (LAC). NOTABLE SHORTCOMINGS
The LAC assessment of the regulations found that the regulations are overbroad and lack proportionality, that they lack suitability to serve the intended objectives, contain flawed judicial authorisation and inappropriate decision-making processes, and that there is no attention to data security principles.
The regulations enable “retaining a massive amount of data of which only a tiny proportion is likely to ever be requested by the police or intelligence services”, the LAC found.
On the issue of suitability to serve the intended objectives, the LAC questions “what purpose the data retention requirements can actually serve given the exclusion of (a) pre-paid telecommunications services and (b) services accessed via foreign telecommunications service providers”.
Considering the issue of judicial authorisation and decision-making – while under regulation 5 it is spelled out that police or national intelligence officials need to obtain a warrant from a judge or a magistrate to access the telecommunications information or data of any individual – the process falls short of best practice.
Worryingly, a police officer (but not an intelligence official) can bypass judicial authorisation to access someone’s personal data by claiming urgency.
However, as per the LAC, this provision is oddly articulated in the regulations, “because it places the decision-making burden on the telecommunications service provider instead of on the trained police officer”.
“The regulations require the police officer making the request to convince the authorised officer at the telecommunications service provider “on reasonable grounds” of three things: that the requested information is required urgently, that the delay in getting court authorisation would defeat the purpose of the request, and that a request to the court for authority to request the information would have been granted if it had been made”, the LAC says.
This approach is at odds with the process authorised under the Criminal Procedure Act 51 of 1977, which places the decision-making burden on the police officer and not the service provider.
Furthermore, the judicial processes do not make provision for ex post facto notice to affected individuals, and no other safeguards for ex parte proceedings. This means transparency and accountability are non-existent in these judicial processes.
The LAC further says the regulations are substantially weak on “measures pertaining to the security of the data and protections for confidentiality and the prevention of unauthorised access, as well as provision for the erasure or destruction of data after the requisite time period for its retention has expired”.
In its final assessment, the LAC concludes, based on comparable legal frameworks, that “it seems likely that Namibia’s telecommunications data retention scheme might be found to be an unconstitutional infringement of the right to privacy overall”.
And it continues: “It does not seem to be appropriately proportional to its aims.” UNIVERSAL CONCERNS Based on this assessment of the regulations, it appears that Namibia is on track to implement regulatory measures that could become problematic, both legally and digitally.
This sort of controversy has dogged similar mandatory SIM card registration and data retention regimes the world over for years. Already in 2014 the United Nations high commissioner for human rights flagged the dangers of such regulatory regimes in a report, titled ‘The Right to Privacy in the Digital Age’.
The report states: “Mandatory third-party data retention . . . appears neither necessary nor proportionate.” Despite this, countries across the world and the African continent have continued implementing such regulatory frameworks, with especially many African governments abusing them for authoritarian and repressive purposes.
This was once again highlighted in the ‘State of Internet Freedom in Africa 2021’ report, which was recently released by the Uganda-based Collaboration on International ICT Policy for East and Southern Africa (Cipesa).
The Cipesa report states that the abuse of SIM card registration and data retention regimes have been central to “state surveillance in Africa [and] has harmed various rights of journalists, human rights defenders and opposition politicians, and undermined their participation in social and public affairs”.
– Frederico Links is a Namibian journalist and researcher. This article was commissioned by the Media Policy and Democracy Project, an initiative of the University of Johannesburg’s department of journalism, film and TV, and Unisa’s department of communication science.
– This is the first of two articles exploring concerning aspects of communications interception and data retention regulations. The second article will be published tomorrow.
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