I-CAN-GHANA

I do not have a beef (complaint or gripe) against the proposed registration of the ‘details’ of the SIM card holders in Ghana. Infact, I support the idea. What I have sought to do is to raise questions about who is leading that exercise, the use to which the information gathered would be put, and also to point to potential legal mine-fields that appear to have been completely lost on those who are in charge of the exercise.

Open Letter

I started to get concerned when I realised that ‘National Security’ has been pushing, behind the scenes for a long time and then in public, for the mandatory registration of the details of all mobile phone subscribers in Ghana, with deadlines and threats of disconnection of unregistered customers. Who gave ‘National Security’ that power? The concerns certainly increased when in the 2010 Budget Statement, we were informed in paragraphs 621, 628, 672 and 864 of plans by the Government to “acquire telecommunications monitoring equipment” ostensibly to “enhance compliance” with the ‘Talk Tax.’

On Monday 14 December 2009, I wrote an open letter to the Ministers of Finance and Communications, to express my concerns and ask certain questions. I am yet to receive a formal response. In the letter, I stated that although the registration and proposed monitoring equipment appeared to be two different, innocuous matters upon first reading, when read together, they threw up many questions that begged for answers. The questions I posed were as follows:

“1. Is there any suggestion or evidence that Telecom Operators have been cheating on the “Talk Tax”, which will then require the implementation of the monitoring of communications to “enhance compliance”?

2. What are the legal bases for the demands by ‘National Security’ for ‘registration’, and therefore unrestricted access to citizens’ details, from Telecom Operators?

3. Is it the case that: (i) at present, the Police, ‘National Security’ and the Military have easy access to individual mobile phone details by simply writing letters to Telecom Operators, without any court orders; (ii) telecom traffic travels in two types of paths, the ‘voice path’ being that in which the actual conversation moves from one network to another, and the ‘signalling path’ being the means by which one network can communicate with the other about a pending call; and that text messages pass through the signalling path, which is the path that the government wants to monitor; (iii) the Government wants to compel Telecom Operators to send all their signalling through ‘black boxes’ owned by the Government, which would monitor all call traffic (i.e. the originating and destination numbers, the time and length of call) and report the data back to the Government in real time; (iii) if or when implemented, the Government will know who we are, who we call, and how often we call, at the time we are calling; (v) although the Government may not be able to decipher the actual words of voice calls, it will be able to read every single SMS coming into and leaving networks, and know every website that a person visits on his/her phone or mobile internet device; (vi) however, by simply manoeuvring the signalling channel messages, the Government will be able to interrupt, process, intercept, block and/or divert calls, so that the Government can then eavesdrop and know every single detail of happenings on the intercepted calls, without our knowledge and/or the involvement of any competent judicial authority in Ghana; (vii) the current proposed implementation will allow the Government, not only to know who is phoning whom, but also from where to where (with accurate location placement), and whether a person is roaming and in which country and on which network; and (viii) by this means, it is possible to change signalling so that although a specific call is made, all traces of it can be removed or disguised so that no one can trace its origin or destination, and create an SMS or call that never existed?”

I also took the opportunity to refer the Ministers to Article 18(2) of the Constitution, which guarantees the citizens’ right to privacy of “correspondence” and “communication” and which provides that this right can only be interfered with “in accordance with law” and for specified purposes.

Existing Relevant Legal Provisions

In writing the letter, I was aware of the provisions of the Security and Intelligence Agencies Act, 1996 (Act 562) which provided that a person’s communications may be “intercepted,” but only upon a warrant issued by a judge of the superior courts. I was also aware of the provisions of the Electronic Transactions Act, 2008 (Act 772) which prohibits the divulging of subscriber information by providers of electronic communication services, except with the consent of the subscriber or upon a court disclosure order, and reserves to the subscriber the right to apply to the court to vacate the disclosure order.

I was also aware of the provisions of the Electronic Communications Act, 2008 (Act 775). This Act provides for the inclusion in telecom licences of “prescriptions regarding national defence and public security” and provides that the licences may be amended “by a written agreement” between the providers and the NCA, specifically where “national security considerations… require the amendment.” The law adds that under those circumstances the providers are “entitled to compensation.” I must also point out that this Act gives the President the power, by Executive Instrument, to issue orders to providers requiring them to intercept communication, provide any user information or otherwise in aid of law enforcement and national security.

If the government is required to comply with these detailed procedures before gaining access to subscriber information or communication, would it not be surely unlawful and unconstitutional for the government and its agencies to gain access anyway as a ‘default’ position by the combination of unrestricted access to the mandatory SIM card registration information (which shows who you are and what your number is) combined with the acquisition of the communications monitoring equipment (which shows whom you are calling, at what time, for what duration, etc.)? In other words, what is the point in having the protections that the laws offer, if the government has access to that information anyway?

Registration: The Way Forward

The requirement for the future registration of the details of SIM card owners is right. No legislation is required for this. But the attempt to compel existing owners to register with the threat of disconnection is fraught with legal problems. With each purchase of a SIM card, the provider enters into a contract with the subscriber. Some of those terms are expressed in the little sheets of paper contained in the ‘package’, and some are implied by law. With some providers, there is the requirement to provide the subscribers details, particularly with post-paid subscribers. One other provider demands that anyway, simply because the technology it uses will not allow the sale of their SIM cards at roadsides.

But the vast majority of subscribers were not required, at the time of entering into the contracts, to provide those details. Any attempt to force them to comply with some new terms, is an attempt to unilaterally vary the terms of the respective agreements. That is unlawful and a breach of those contracts. Of course, subscribers can decide to voluntarily comply and provide those details. That would be most welcome, and this writer would want to take this opportunity to encourage Ghanaians to voluntarily provide that information.

However, they cannot be compelled, under the threat of being disconnected. If the providers do this, they will be inviting unto themselves the biggest class action litigation in the history of this country, and I foresee injunctions that would tie down this process for quite a while. They only other way forward, will be legislative intervention. We have done this before. When Ghana needed to register the identities of its nationals, it passed specific legislation to achieve that purpose. That is the way to go. Let Parliament pass law that requires this, going forward. Then the legislation and regulations made under it will set down the exact procedure for doing this, provide for the relevant forms, etc.

Monitoring Equipment

Returning to my worries about what the “telecommunications monitoring equipment”, I have seen a new law, titled Electronic Communications (Amendment) Act, 2009 (Act 786), which was signed into law and received Gazette notification on the same day, 31 December 2009 (which is quite unusual). This law effectively authorises the acquisition of the equipment, this time called “mechanisms and measures,” and then bars the use of the “equipment” or “mechanism” or “measures” for the purposes that I was concerned about. The new provision is as follows:

“The mechanisms and measures… instituted shall not have the capability to actively or passively record, monitor or tap into the content of any incoming or outgoing electronic communication traffic, including voice, video and data existing discretely or on a converged platform whether local or international.”

Conclusion

With this, I guess that I should not expect any response to my letter from the Ministers. What is clear is that my 14 December 2009 letter was not raising false alarms or merely crying wolf. There was clearly more in the woodworks than I even realised when I wrote the letter. Let ‘National Security’ take a step back and allow the Telecom Operators, NCA and Parliament work through this. Let the government and its agencies begin to comply with the provisions of the laws with respect to obtaining the telecommunication records of the citizens. Let the Telecom Operators stop providing customer information to law enforcement agencies upon the mere production of a demand letter. Right now they are exposed to potentially devastating law suits for acting in breach of the existing legislation. The providers should start asking for the court disclosure orders. Further, let the NCA, as the operator of the “telecommunications monitoring equipment,” have regard at all time to the law governing the use of that equipment, so that the NCA does not become a mere ‘pass through’ of information for the government. But by all means, let us pass law on the registration of existing SIM cards. And whilst at it, let us pass the data protection bill into law.

Whether this new legislation amounts to a sufficient protection of our right to privacy and how the law can be enforced in the event of a breach, is a matter that we might only ascertain in the future.

Yours in the service of God & Ghana,

Kojo Anan

(kojoanan.blogspot.com, www.i-can-ghana.com)