'PHONE INTERCEPTIONS: TANZANIA TO LAND IN COURT?

Written by MNAKU MBANI

Friday, 27 June 2014 13:27

THE Tanzania Consumer Advocacy Society (TCAS) says that it is expected to collect enough evidence to sue the Government in Dar for intercepting customers data and voice in the mobile telecommunications sub-sector. The TCAS executive director, Bernard Kihiyo, told Business Times that the Society is preparing to issue a 90-day notice of the intended legal proceedings to the Government accordingly, while it proceeds to collect evidence from at least 30 victims of the alleged interceptions. Kihiyo was responding to a recent report by the UK-based Vodafone which revealed that Tanzania was fourth in the number of 'phone interceptions among the reported countries with many data and voice interceptions! The British company said wires had been connected directly to its networks and those of other telecoms groups, thereby enabling agencies to listen to and/or record live conversations – and, in certain cases, track the whereabouts of a customer. In the event, British privacy campaigners said the revelations were a "nightmare scenario" that confirmed their worst fears on the extent of snooping. “For governments to access phone calls at the flick of a switch is unprecedented and terrifying,” they said. In about six of the countries in which Vodafone operates, local laws either oblige telecoms operators to install direct access pipes, or allow governments to do so. The company – which owns mobile and fixed broadband networks, including the former Cable & Wireless business – has not named the countries involved because certain regimes could retaliate by imprisoning its staff! “However, in every country in which we operate, we have to abide by the laws of those countries requiring us to disclose information about our customers to law enforcement agencies or other government authorities, or to block or restrict access to certain services,” says Vodafone. Published earlier this month, the Vodafone report further reveals that, during last year alone, Tanzania reported 75,938 interceptions of contents, which included both voice and data communications! “We are expecting to serve the 90-day notice and invite victims of interception before proceeding to the Attorney-General (AG),” TCAS's Kihiyo  told Business Times in a telephone interview. “If the 90-day period will pass without the Government giving out clear reasons why it is violating the (national) Constitution, we will log our demands at the High Court” of Tanzania, he said. Kihiyo further stated that data and voice interception was against Article 16, Sections 1 and 2 of the Constitution of the United Republic and, as such, this was of great concern to consumers. Article 16 provides that 'every person is entitled to respect and protection of his person, the privacy of his own person, his family and of his matrimonial life, and respect and protection of his residence and private communications.’ This protection of private communications would include emails, short-message services (SMSs), mail and telephone conversations. “This is the ticking time-bomb expected to explode,” Kihiyo stresses. However, Tanzania is allowed to intercept customers’ data and voice communications in accordance with the The National Security Act; the Prevention of Terrorism Act, and the Criminal Procedure Act. “All of these laws have been enacted against Article 16 of the Constitution, which protects personal privacy, and we need to look on the other side of the coin,” he stated. Surprisingly, though, the Electronic & Postal Communications Act (EPoCA-2010) does not specifically make provision for interception of customer communications. However, the existence of interception powers can be implied from Section 120 of the Act which states that 'no person, without lawful authority under the EPOCA or any other written law, can intercept, attempt to intercept, or procure any other person to intercept or attempt to intercept any communications.' 'An application must be made under ‘any other law’ to the Director of Public Prosecutions (DPP) for authorization to intercept or listen to any customer communication transmitted or received,' the EPOCA elaborates. Only public officers, or an officer appointed by the Tanzania Telecommunications Regulatory Authority (TCRA) and authorized by the Ministry of Science & Technology, as well as the Ministry of Home Affairs, may be permitted to intercept such communications. The EPOCA stipulates that subscriber information be kept within the TCRA. The TCRA shall take charge of the monitoring and supervising of the information so stored. The Tanzania Intelligence & Security Services Act [Cap 406 of the Laws of Tanzania, Revised Edition 2002] charges the Tanzania Intelligence & Security Service with the duty to collect information by investigation or otherwise, to the extent that it is strictly necessary, and analyze and retain, information and intelligence in respect of activities that may on reasonable grounds be suspected of constituting a threat to the security of Tanzania, or any part of it. The 1977 Constitution of the United Republic of Tanzania as amended from time to time provides the Parliament with the power to enact and enable measures to be taken during a state of emergency or in normal times in relation to persons who are believed to engage in activities which endanger or prejudice the security of the nation. However, Vodafone has admitted that these laws are designed to protect national security and public safety; to prevent or investigate crime and terrorism. In any case, the agencies and authorities that invoke those laws insist that the information demanded from communications operators such as Vodafone is essential to their work. “Refusal to comply with a country’s laws is not an option. If we do not comply with a lawful demand for assistance, Governments can revoke our license to operate, thus preventing us from providing services to our customers,” Vodafone says in its report. “Our employees who live and work in the country concerned may also be at risk of criminal sanctions, including imprisonment. We, therefore, have to balance our responsibilities between respecting our customers’ right to privacy against our legal obligation to respond to the authorities’ lawful demands... As well as our duty of care to our employees – recognizing throughout our broader responsibilities as a corporate citizen to protect the public and prevent harm. SOURCE; @ The Business Times