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New bill on communication interception infringes on free expression, says MISA

(MISA/IFEX) - The Namibian chapter of the Media Institute of Southern Africa, (MISA Namibia), has noted with grave concern the provision for Interception of Electronic Communications in the draft Information Communication Bill. It is recognised worldwide that wiretapping and electronic surveillance is a highly intrusive form of investigation that should only be used in limited and unusual circumstances. Major international agreements on human rights protect the right of individuals from unwarranted invasive surveillance. We therefore submit that the proposed law will infringe on the rights and civil liberties of Namibian citizens:

1. Infringement on freedom of expression and right to information
The provision constitutes a gross infringement on the fundamental and constitutional rights of Namibians to freedom of expression and right to information, as per Chapter 3 of the Namibian Constitution.

Citizens should freely express themselves and receive information without fear of eavesdropping and interception. Citizens have the right to private, confidential and personal information which should not come under the domain of the state.

2. Infringement on Privacy
The proposed law is a violation of the constitutional right to privacy as guaranteed in Article 13 of the Namibian Constitution that "no person shall be subject to interference with the privacy of their homes, correspondence or communications". The Namibian government has a constitutional mandate and obligation to uphold the fundamental right to privacy. The setting up of a centre to intercept electronic communications through the enactment of a law that does not meet constitutional provisions will be a gross violation of privacy.

3. Blanket interception of communication
The bill states that interception is meant to combat crime and protect national security. This is wide, vague and open to abuse. The proposed law mandates service providers to ensure that telecommunications are provided in a manner that enables interception. We submit that interception of communications should be an exception rather than the rule. The bill should narrowly define which type of communication can be intercepted. In other international jurisdictions an exception is made to target activities such as money laundering, terrorism, child pornography or human trafficking.

4. Sweeping powers for interception
The bill gives sweeping powers to individual staff members at any level to monitor and intercept communication. This is frightening and clearly open to abuse. Private, confidential and personal information may be intercepted and abused by the system. Lawyer-client confidentiality, banker-customer confidentiality, husband-wife confidentiality, doctor-patient confidentiality and all other forms of confidentiality will be breached under the proposed law. There should be a system of checks and balances and judicial review of any warrant for interception.

5. Financial burden on the communications industry
The proposed law compels service providers in the communications industry to bear the costs of equipment for interception. MISA believes this financial obligation is unfair and the costs will ultimately be passed on to the consumer. This will consequently render services inaccessible to the poor and disadvantaged who are already burdened with inhibitive communication costs such as the imposition of VAT on pre-paid mobile telecommunications.

6. A retrogressive and repressive law
Overall MISA Namibia views the interception of communications provision as a retrogressive and repressive piece of law that has no place in a democratic society. We therefore urge Parliament to refrain from passing a law that clearly violates the rights of citizens.

7. Recommendations
The Namibian government should develop a policy to:
a. Ensure that privacy protection is a core consideration in all activities;
b. Ensure that accountability for privacy issues is clearly incorporated into the duties of all institutions, jurisdictions and sub-sectors;
c. Provide decision-makers with the information necessary to make fully-informed policy decisions based on an understanding of the privacy implications and risks and the options available for avoiding and/or mitigating those risks.

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