It was reported in Vanguard of 26th November, that a Lagos-based firm, Technocrat Consult and IT Systems Limited (Technocrat IT), dragged the Independent National Electoral Commission (INEC) before a Federal High Court sitting in Lagos, challenging the legality of the award of contract for supply of the Direct Data Capture machines to three firms without its consent.
Technocrat IT is demanding N8billion as damages, claiming that it invented the technique, a portable telecommunication device used in biometric identification covered by patent right No RP: NG/P/2010/283. According to Technocrat IT, this invention is comprised of a portable and lightweight fingerprint apparatus (biometric capture agent application), which can scan and record fingerprint images in the field and wirelessly transmit the said images to a central unit (biometric database) for the purpose of providing immediate identity and background checks on the individuals being fingerprinted.
This piece analyzes the strength of Technocrat IT’s case before the court. A convenient place to start in this analysis would be the caveat contained in section 4(4) of the Patent Act which says that “Patents are granted at the risk of the patentee and without guarantee of their validity.” In essence, this means that the fact that you own a patent right does not guarantee the validity of that patent.
Some of the requirements for patenting an invention under the Patent Act are set out as: if the invention is new, results from an inventive activity and is capable of industrial application or it constitutes an improvement to an earlier invention.
Having construed Technocrat IT’s patent claim as explained and displayed on their website at www.technogratgroup.co.uk , it seems that their patent though capable of an inventive activity, has not met the standard of patentability of been new/novel, neither has it resulted from an inventive activity.
It is important to mention here that on the 25th of December, 1998, an International Application (with number PCT/US98/20089) was presented for filing under the Patent Cooperation Treaty (PCT) with the International Bureau (IB) of the World Intellectual Property Organization (WIPO), a similar application covering the same invention has also been filed before the United States Patent and Trademark Office. This application relates to a MOBILE BIOMETRIC IDENTIFICATION SYSTEM and the summary of the Invention states that:
“The present invention may be embodied in a distributed biometric identification system having highly mobile user workstations. More particularly, the invention may be embodied in a distributed, mobile biometric identification system and architecture for rapidly identifying individuals using fingerprint and photographic data. The disclosed architecture includes a centralized server, and a plurality of distributed, mobile client workstations that are remotely located from the centralized server. The mobile workstation includes a substantially portable two-way communications link (e. g., a land-based or satellite-based mobile radiotelephone) that may be used to place the mobile workstation in communication with the centralized server”
This earlier invention primarily practices the invention now claimed by Technocrat IT, I must also say that Technocrat IT’s invention/patent is not an improvement to this earlier invention), it is important to note that in determining the novelty of an invention or as to whether it results from an inventive activity, the Patent Act states that the invention itself must not form a part of or obviously follow (either as to the methods, or the product which it concerns, or as to the industrial results it produces) from the state of the art which the Patent Act defines under Section 1 (3) as:
concerning that art or field of knowledge which has been made available [not necessarily patented] to the public anywhere [in the world] and at anytime whatever…before the date of filing of the patent application…
The court in interpreting the above provision will exercise flexibility and will not be restricted to only evidence of the state of the art available in Nigeria neither would it be limited to evidence of a prior Patent grant obtained in Nigeria as the standard of been made available does not necessarily entail the prior grant of a Patent but rather that information concerning the patent or claimed invention has been previously disclosed to the public by way of a written or oral description, by use or in any other way.
In the English case of Windsurfing International Inc. v Tabur Marine (GB) Ltd. [1985] RPC 59, the plaintiff were the manufacturers of the first commercial windsurfer/sailboard and patented their design for sailboard with a Bermuda rig and a wishbone spar in the UK and elsewhere. The plaintiffs subsequently sued another company for patent infringement as a result of making and selling a similar sailboard in the UK. The validity of the patent was challenged by an the defendant on the fact that in 1958, at least 10 years before the grant of the patent a 12 year old boy called Peter Chilver had built an early version of a sailboard which was evidenced by film footage taken off the coast of Hayling Island. They alleged that this proved that the subject of the plaintiffs' patent had been anticipated
The Court upheld the defendant's claim that the boy's invention predated the plaintiff's application for a UK patent and the patent was rendered invalid notwithstanding that Chiver’s sailboard was of a slightly different design.
Conclusively, this evidence of an earlier invention which predates Technocrats IT’s Patent grant will not only destroy their case but nullify the earlier grant of the Patent under Section 9 (1) a of the Patent Act since it does not meet the standards of Patentability (Novelty/New and resulting from an Inventive Activity) as set out under Section 1 of the Act.
PS: On a lighter note, reading over the weekend about the injunction obtained against INEC on a similar ground of Copyright/Patent Infringement, I am beginning to be concerned as to when exactly I would be able to make my vote count.
Monday, December 6, 2010
Monday, November 15, 2010
WILL ALL VOICE CALLS IN NIGERIA BE SUBJECT LAWFUL INTERCEPTION: A BRIEF COMMENTARY OF THE PROPOSED TELECOMMUNICATIONS FACILITIES (LAWFUL INTERCEPTION OF INFORMATION) BILL, 2010.
Introduction
The impressive growth recorded in the Nigeria telecommunications market has unfortunately been challenged by criminal activities. Recent evidence emanating from Law Enforcement Agencies have indicated that criminal activities such as [Armed] Robberies, Advance Fee Fraud (aka 419 named so after the popular section 419 of the Nigerian Criminal Code) and more recently detonating an explosive device have been facilitated with the aid of mobile phones.
The House of Representative in responding to these threats initiated legislative proposal titled HB: 395 titled “An Act Requiring Telecommunications Facilities To Facilitate The Lawful Interception Of Information Transmitted By Means Of Those Facilities And Respecting The Provision Of Telecommunications Subscriber Information; And For Other Matters Connected therewith”[1] This Bill in its explanatory memorandum states:
This bill seeks to require telecommunications service providers to put in place and maintain certain capabilities that facilitate the lawful interception of information transmitted by telecommunications and to provide basic information about their subscribers to the Nigeria police force and the state security service.
The legal question therefore becomes will all voice calls be subject to lawful interception taking into consideration the rate at which telecommunications services have evolved in Nigeria from a teledensity of about 508,316 connected lines in 1999 to about 74,000,000 connected lines in 2009.[2]
This question will form the basis of my commentary.
As can be gleaned from the Bill’s explanatory memorandum, the Bill will require that that all telecommunications service providers have technical capability for lawful interception. The Bill sets forth assistance capability requirements, compelling telecommunications service providers to build and sustain their equipment in a manner that allows authorized law enforcement agents to lawfully intercept communications. The Bill therefore preserves the ability of law enforcement agencies to execute authorized electronic surveillance by requiring that telecommunications service providers have the technical capability to intercept communications.
Interception under section 53 (1) (c) of the Bill “includes listen to, record or acquire a communication” Lawful Interception generally refers to the lawfully authorized interception and monitoring of communications traffic (which could either be voice, data, audio or a combination of any or all of them) pursuant to the order of an authorized person for the purpose of gathering evidence or forensic analysis.
With the rapidly expanding telecommunications infrastructure, Nigeria currently has capability for two types of voice calls; telephone calls made through a telecommunications facilities or network as rightly defined under Section 53 of the Bill and Voice over Internet Protocol (VoIP) which is voice communications over the internet or any packet switching network; the most popular of these been Skype and Yahoo Messenger Call.
It is important to note that VoIP services is derived from Internet services, the meaning of which was neither provided for in the Bill nor was it defined in the earlier Nigerian Communications Act, 2003, however the internet in its most fundamental level is simply the interconnection of computer networks that is so seamless as to appear to the user as one network, this service in itself is entirely different in terms of technical architecture and communications protocols from Telecommunications Service.
Going forward, Section 53 of the Bill defines communications as any “communication effected by means of telecommunications and includes any related transmission data or other ancillary information” while telecommunications service under the same section is defined as a “service or a feature of a service, that is provided by means of telecommunications facilities, whether the provider owns, leases or has any other interest in or right respecting the telecommunications facilities and any related equipment used to provide the service”. It is important to note that the use of the words “Telecommunications Services” is intended to exclude other forms of internet services like email, Internet, Voice-over-Internet Protocol (VoIP) provided by internet service providers.
However, the implication of this provision is subject to Section 6 of the Bill which retains the capability of telecommunications service providers to intercept communications, even when they offer new services, as long as such a service is provided through their network. In essence, where a telecommunications service provider provides other forms of information services like internet services or VoIP through its network, such a service would be subject to intercepts by law enforcements agents.
The long and short of this legal analysis is that VoIP services provided by internet service providers are not subject to the proposed bill unless such services is provided via telecommunications service networks, however it is important to note that Section 147 of the Nigerian Communications Act, 2003 will subject both telecommunications service providers and internet service providers to lawful interception on the determination of the Nigerian Communications Commission.
Friday, October 1, 2010
NETWORK NEUTRALITY LAW AND ACCESS TO BROADBAND SERVICES IN NIGERIA
2010, Nigeria; the International Internet Connectivity (ICC) is currently dominated by three major players providing bandwidth access on a wholesale and retail basis to the Nigerian end users. These players are the state owned Nigerian Telecommunications Limited (NITEL) providing access via the SAT-1 submarine cable, Glo through the GLO-1 submarine cable and MainOne Cable company via the MainOne submarine cable, of these cables, only the GLO-1 and MainOne submarine cables have broadband (or high speed) internet access capability.
In recent times, global policy issues on broadband internet access have focused on network neutrality, that is whether broadband network operators should be allowed to favor (or as is emotionally argued; discriminate) one data traffic over another one that passes through its network.
This is the main thrust of this paper. Arguments in support of network neutrality have tended to lean towards the belief that discriminating data traffic is anti-consumer and may be capable having an anti-competitive effect under certain conditions. With the current expansion of internet services in Nigeria and particularly the current investment in broadband infrastructure, the need arises to revisit the issue of network neutrality in the Nigerian context. In considering the question of network neutrality, guidance is sought from the Nigeria Communications Act 2003 (NCA) and the relevant regulations made under the Act.
NETWORK NEUTRALITY
The internet in its simplest terms refers to a system of decentralized, interconnected network of computer networks that allows computers to communicate with each other. The internet has come a long way since 1960 when it was then known as the Advanced Research Projects Agency Network (ARPANET), the first operational packet switching network owned by the United States Department of Defense. The internet as we know it today has evolved rapidly and extended far beyond the territory of the United States. As at 2008, almost 1.6 billion people worldwide had access to the internet, of these figures only 23, 982, 208 had access from Nigeria.
The growing rate of internet penetration in Nigeria has closely been linked to the Global System for Mobile Communications (GSM) revolution; where GSM service providers have also been capable of providing access to the internet via their mobile network infrastructures.
Today, the geometric growth rate of the Nigerian telecommunications market has created a demand for bandwidth intensive application such as cloud computing (especial software-as-a-service; SaaS), streaming media and Voice-over-internet protocol (VoIP) services which has necessitated the investment in the provision broadband services.
Network neutrality as a principle recommends that all internet traffic passing through a network should be treated alike irrespective of the source of the traffic, destination or nature of the traffic. According to Google, Network neutrality is the principle that Internet users should be in control of what content they view and what applications they use on the Internet. The Internet has operated according to this neutrality principle since its earliest days... Fundamentally, net neutrality is about equal access to the Internet. This definition is based on the notion of a free and fair internet and that broadband should be available to users who have paid to access this service. This definition is centered on the four basic “Internet Freedoms”.
The concept of network neutrality can be traced to the end-to-end principle which sees the internet as a “dumb” network designed to treat all data traffic equally. In this sense, the network doesn’t ask questions about the sender of the traffic, the recipient or its content; it simply analyzes the traffic and passes it onward for delivery to the end user through the next available node.
A related concept to network neutrality is access tiering which refers to the models used by a particular network operator in treating its traffic. This can be manifested by the network operator in giving bandwidth priority to websites and online service providers that pay for Quality of Service (QoS), websites owned by or in partnership with; or that have paid a premium to the network operator This ultimately means that the content of such favored websites/online service providers would ride faster over the operators last mile to the subscribers.
The different models (which are the subject of network neutrality) used for access tiering are:
a) The “best efforts” rule. Here, the network operator treats all data traffic equally. By this rule, the first data traffic in, is the first the data out. The rule however is subject to variable performance and periods of congestion. This rule seems to assume a similar stance with the maxim in equity … the first in order of time shall prevail.
b) “Needs-based discrimination” treats all data traffic in accordance with the best effort rule until such a time when there is network congestion. At this point certain time sensitive data traffic (such as live streaming or internet telephony data streams ) are moved to the front of the queue for onward delivery to the recipient.
c) “Active discrimination” This is forms the subject of this discourse. The discrimination occurs where a network operator without any reasonable justification prioritizes data for delivery to the end-user in accordance with pre-defined rules. This discrimination may be as a result of the origin, destination or nature of the data traffic.
In the words of American Professor of Law Tim Wu, ”The basic principle behind network [neutrality] regime is to give [internet] users the right to use non-harmful network attachments or applications, and give innovations the corresponding freedom to supply them.” The principle of network neutrality works to prevent the unnecessary restriction of how the end-user accesses the internet, this no doubts creates value in the use of a particular network. These discriminatory practices are well illustrated by these hypothetical cases.
a) Service provider discrimination: An operator such as MainOne Cable Company may enter into company with (or even own) live streaming service A under which A’s content is favored over the contents of live streaming service B. In such scenarios, it’s possible for the internet end users who subscribe to B’s services to become frustrated at the slow pace at which they receive B’s service, this may result in their migration to A’s service due to the faster and better performances offered.
b) Application discrimination: Though this form is not relevant under the current discourse, nevertheless a network operator may discriminate against time sensitive applications such as streaming services or VoIP applications over less time sensitive data traffic like emails.
This priorisation and de-priorisation of internet traffic (otherwise known as access tiering) forms the core of the network neutrality debate. This debate has assumed some measure of popularity in the United States where many have been prompted to ask whether some form of regulatory intervention should not be introduced to curtail instances of internet data discrimination. The fear in the United States is hinged on what network operators might be tempted to do rather than what they are currently doing in the absence of any network neutrality law. The Madison River case further lays credence to this claim. In that case, an Internet Service Provider (ISP) allegedly blocked its customers from accessing a competing VoIP provider. The ISP entered into a consent decree with the sector regulator, Federal Communications Commission (FCC) that prohibited the ISP from blocking ports used for VoIP traffic. The ISP also made a voluntary payment of $15,000 to the US treasury.
It is important to bear in mind that this debate is two sided, on one side are the operators of internet/broadband networks who claim that any form of network neutrality regime is likely to impede broadband internet access and may actually be disadvantageous to innovation. Their belief is that effective network management strategies may require that certain internet data traffic be favored over others. They also contend that a small number of end users can degrade network performances through the use of bandwidth-intensive applications such as live streaming video services and peer-to-peer (p2p) applications. They further contend that network resources may not be capable of accommodating such situations and that network expansion may be expensive, leaving them with the only viable alternative of the cost effective method of network management. On the issue of technology innovation, advocates argue that network operators should be allowed to innovate freely with their different service offering which is the real essence of competition, for them any network neutrality regime is a restriction of new types of competition which in turn restricts innovation. According to them experimenting freely with new service offerings is likely to benefit competition and enhance efforts in innovations in the belief that where failures result from such innovations, network operators are likely to learn from their mistakes in other to compete effectively in the market.
ASSESSMENT OF NETWORK NEUTRALITY UNDER NIGERIAN COMPETITION LAW
The primary aim of all Competition regimes is to ensure the existence of a state of affairs in which output is maximized, price is minimized and the consumers are able to make their own choices. The overall intention of Competition policies is to protect the consumers from unfair market practice. For this, there arises the need for the Government to intervene to stimulate and preserve a competitive environment. Phrases like “substantially lessening of competition,” “anti-competitive agreements and practices” and “abuse of dominant position” are relevant and come within the scope of a Competition regime.
As no general competition law currently exist in Nigeria at the moment, the relevant competition provisions are embedded in the NCA & its subsidiary Competition Practices Regulations (CPR) 2007 which are both applicable in the Nigerian Communications market.
The competition concerns of network neutrality can be viewed from various angles in Nigeria, for instance and depending on the particulars of a conduct, it seems likely that blocking access to broadband access (for the purpose of inducing a subscriber to migrate to another service) or discriminating in favor of a service provider with whom the broadband network provider has some sort of contractual relationship with, is likely to be caught by Sections 9 e and 14 e of the CPR which respectively provides:
discriminating in the provision of interconnection or other communications services or facilities to competing Licensees, except under circumstances that are objectively justified based on supply conditions, such as discrimination based on differences in the costs of supply; and
exclusive dealing agreements, pursuant to which a Licensee enters into an agreement with another party for the supply of products or services on an exclusive basis, and where that exclusivity has or may have the effect of substantially lessening competition in related communications markets.
For instance an exclusive dealing agreement precludes a supplier’s competitors from doing business with the buyer during the agreed period. In the broadband market, an ISP might enter into agreement with content or application providers to provide exclusive, or preferential, access to consumers. In such instances, an ISP might arrange to allow access only to a single service provider and the other service providers are then be denied last-mile access to that ISP’s customers or end users.
In enforcing these provisions, the Nigerian Communications Commission (NCC), the sector regulator will be guided by the provisions of Section 91 (2) of the NCA and Section 6 of the CPR which both emphasize that in assessing whether any conduct is capable of “substantial lessening of competition” reference will be made to the following circumstances; the relevant economic market, the impact of the conduct on existing market players, the impact of the conduct on barriers to market entry and the impact of the conduct on consumers. The test here is to determine the extent of encumbrance against market competition which results in a significant injury to either the competitors or consumers or both. In the case of an exclusive dealing arrangement the assessment goes beyond the number of competitors closed out, as competition authorities worldwide seem to have a convergent opinion in assessing exclusive dealing arrangements where the market definition, the amount of foreclosure in the relevant market, the duration of the contracts, the extent to which entry is deterred, and the reasonable justifications, if any, for the exclusivity are all taken into account.
While a conduct capable of “substantial lessening of competition” seems like a potential threat to the consumers access to broadband services, the claim by proponents of network neutrality that internet data discrimination is anti-competitive seems to be forward looking as the major concern as is in the United States is focused on not what broadband network providers are currently doing, but rather on what they are capable of doing.
THE CURRENT NIGERIAN POSITION ON NETWORK NEUTRALITY
Though no specific Network Neutrality Law currently exists in Nigeria, however (bearing in mind that one of the primary goals of the NCA is to ensure that fair competition exists in the communications sector and that the rights of all consumers and service providers are protected) in the context of interconnection and access to network facilities/services embedded in Sections 96-103 of the NCA, 2003, in particular Section 97 b mandates that all interconnection agreement comply with the principles of neutrality [emphasis mine], transparency, non-discrimination, fair competition, universal coverage, access to information, equality of access and equal terms and conditions. Though neither this section nor the NCA has given a proper description of what constitutes neutrality, however it is safe to assume that this section intends to ensure the absence of prioritization measures or differential treatment of communications traffic when interconnecting with other licensees or providing access to network facilities to interested parties.
Another passive instance of network neutrality can be found in the grant of a licence for the provision of internet services under Section 32 of the NCA. In particular condition 5 of the Licence provides:
5.1 The Licensee shall not (whether in respect of charges or other terms or conditions applied or otherwise) show undue preference to or exercise undue discrimination against any particular person or persons of any class or description in respect of;
a) the provision of a service under this Licence; or
b) the connection of any equipment approved by the Commission.
5.2 The Licensee shall be deemed to have shown such undue preference or to have exercised such discrimination if it unfairly favours to a material extent a business carried on by it or by its lawful telecommunications associates in relation to any of the matters mentioned in paragraph 5.1 so as to place at a significant competitive disadvantage persons competing with that business.
These provisions without mentioning “network neutrality” has in some implicit way taken a stance in favour of network neutrality by making it a license condition that internet access providers must not show “undue preference to” any person. The subsequent provision goes further in defining a conduct indicative of “undue preference” as indiscriminately giving preference in the provision of internet service and or in the connection of any equipment approved by the commission to the business of its “lawful telecommunications associates.” A breach of these provisions is likely to entitle the NCC to revoke the internet license of the licensee.
CONCLUSION
The reality on ground is that the Nigerian broadband access market is still very much in its infancy stage, more market entry is needed for the market to be more competitive. The argument here is that increased broadband market participation is likely to reduce discriminatory practices as was noted in the US by AT & T Chairman Ed Whitacre that “Any [network] operator that blocks access to content is inviting customers to find another provider. And that’s just bad business.” Whether the likelihood of broadband discrimination is real or imagined in the absence of any network neutrality regime in Nigeria, notice must be taken of the vision of the NCA and the National Communications policy which includes inter alia, the promotion of easily accessible communications services for Nigerians.
Whichever way the pendulum swings, effective consumer protection will be needed for effective market competition to be sustained. In this vein, Service Level Agreement that addresses consumer protection concerns will play a role in clearly spelling out the terms of different broadband packages, these material terms may include traffic management practices of the network operator, after all of what use would be the effect of a competition regime if the consumers are not able to exercise their right to choose.
The dabate on network neutrality is likely to change how data is transmitted and consumed online while the question of broadband service discrimination remains alive, however, sight must not be lost of the principles surrounding network neutrality should a law for it become inevitable. These principles as stated by the US Federal Communications Commission (FCC) in its Broadband policy statement adopted on August 5th, 2005 revolves round the rights of broadband consumers to; access lawful content of their choosing, use applications and services of their choosing, connect network devises that to not degrade network performances and finally are entitled to competition among the various service providers. These principles will guarantee that these four basic “Internet Freedoms” are protected and preserved.
In recent times, global policy issues on broadband internet access have focused on network neutrality, that is whether broadband network operators should be allowed to favor (or as is emotionally argued; discriminate) one data traffic over another one that passes through its network.
This is the main thrust of this paper. Arguments in support of network neutrality have tended to lean towards the belief that discriminating data traffic is anti-consumer and may be capable having an anti-competitive effect under certain conditions. With the current expansion of internet services in Nigeria and particularly the current investment in broadband infrastructure, the need arises to revisit the issue of network neutrality in the Nigerian context. In considering the question of network neutrality, guidance is sought from the Nigeria Communications Act 2003 (NCA) and the relevant regulations made under the Act.
NETWORK NEUTRALITY
The internet in its simplest terms refers to a system of decentralized, interconnected network of computer networks that allows computers to communicate with each other. The internet has come a long way since 1960 when it was then known as the Advanced Research Projects Agency Network (ARPANET), the first operational packet switching network owned by the United States Department of Defense. The internet as we know it today has evolved rapidly and extended far beyond the territory of the United States. As at 2008, almost 1.6 billion people worldwide had access to the internet, of these figures only 23, 982, 208 had access from Nigeria.
The growing rate of internet penetration in Nigeria has closely been linked to the Global System for Mobile Communications (GSM) revolution; where GSM service providers have also been capable of providing access to the internet via their mobile network infrastructures.
Today, the geometric growth rate of the Nigerian telecommunications market has created a demand for bandwidth intensive application such as cloud computing (especial software-as-a-service; SaaS), streaming media and Voice-over-internet protocol (VoIP) services which has necessitated the investment in the provision broadband services.
Network neutrality as a principle recommends that all internet traffic passing through a network should be treated alike irrespective of the source of the traffic, destination or nature of the traffic. According to Google, Network neutrality is the principle that Internet users should be in control of what content they view and what applications they use on the Internet. The Internet has operated according to this neutrality principle since its earliest days... Fundamentally, net neutrality is about equal access to the Internet. This definition is based on the notion of a free and fair internet and that broadband should be available to users who have paid to access this service. This definition is centered on the four basic “Internet Freedoms”.
The concept of network neutrality can be traced to the end-to-end principle which sees the internet as a “dumb” network designed to treat all data traffic equally. In this sense, the network doesn’t ask questions about the sender of the traffic, the recipient or its content; it simply analyzes the traffic and passes it onward for delivery to the end user through the next available node.
A related concept to network neutrality is access tiering which refers to the models used by a particular network operator in treating its traffic. This can be manifested by the network operator in giving bandwidth priority to websites and online service providers that pay for Quality of Service (QoS), websites owned by or in partnership with; or that have paid a premium to the network operator This ultimately means that the content of such favored websites/online service providers would ride faster over the operators last mile to the subscribers.
The different models (which are the subject of network neutrality) used for access tiering are:
a) The “best efforts” rule. Here, the network operator treats all data traffic equally. By this rule, the first data traffic in, is the first the data out. The rule however is subject to variable performance and periods of congestion. This rule seems to assume a similar stance with the maxim in equity … the first in order of time shall prevail.
b) “Needs-based discrimination” treats all data traffic in accordance with the best effort rule until such a time when there is network congestion. At this point certain time sensitive data traffic (such as live streaming or internet telephony data streams ) are moved to the front of the queue for onward delivery to the recipient.
c) “Active discrimination” This is forms the subject of this discourse. The discrimination occurs where a network operator without any reasonable justification prioritizes data for delivery to the end-user in accordance with pre-defined rules. This discrimination may be as a result of the origin, destination or nature of the data traffic.
In the words of American Professor of Law Tim Wu, ”The basic principle behind network [neutrality] regime is to give [internet] users the right to use non-harmful network attachments or applications, and give innovations the corresponding freedom to supply them.” The principle of network neutrality works to prevent the unnecessary restriction of how the end-user accesses the internet, this no doubts creates value in the use of a particular network. These discriminatory practices are well illustrated by these hypothetical cases.
a) Service provider discrimination: An operator such as MainOne Cable Company may enter into company with (or even own) live streaming service A under which A’s content is favored over the contents of live streaming service B. In such scenarios, it’s possible for the internet end users who subscribe to B’s services to become frustrated at the slow pace at which they receive B’s service, this may result in their migration to A’s service due to the faster and better performances offered.
b) Application discrimination: Though this form is not relevant under the current discourse, nevertheless a network operator may discriminate against time sensitive applications such as streaming services or VoIP applications over less time sensitive data traffic like emails.
This priorisation and de-priorisation of internet traffic (otherwise known as access tiering) forms the core of the network neutrality debate. This debate has assumed some measure of popularity in the United States where many have been prompted to ask whether some form of regulatory intervention should not be introduced to curtail instances of internet data discrimination. The fear in the United States is hinged on what network operators might be tempted to do rather than what they are currently doing in the absence of any network neutrality law. The Madison River case further lays credence to this claim. In that case, an Internet Service Provider (ISP) allegedly blocked its customers from accessing a competing VoIP provider. The ISP entered into a consent decree with the sector regulator, Federal Communications Commission (FCC) that prohibited the ISP from blocking ports used for VoIP traffic. The ISP also made a voluntary payment of $15,000 to the US treasury.
It is important to bear in mind that this debate is two sided, on one side are the operators of internet/broadband networks who claim that any form of network neutrality regime is likely to impede broadband internet access and may actually be disadvantageous to innovation. Their belief is that effective network management strategies may require that certain internet data traffic be favored over others. They also contend that a small number of end users can degrade network performances through the use of bandwidth-intensive applications such as live streaming video services and peer-to-peer (p2p) applications. They further contend that network resources may not be capable of accommodating such situations and that network expansion may be expensive, leaving them with the only viable alternative of the cost effective method of network management. On the issue of technology innovation, advocates argue that network operators should be allowed to innovate freely with their different service offering which is the real essence of competition, for them any network neutrality regime is a restriction of new types of competition which in turn restricts innovation. According to them experimenting freely with new service offerings is likely to benefit competition and enhance efforts in innovations in the belief that where failures result from such innovations, network operators are likely to learn from their mistakes in other to compete effectively in the market.
ASSESSMENT OF NETWORK NEUTRALITY UNDER NIGERIAN COMPETITION LAW
The primary aim of all Competition regimes is to ensure the existence of a state of affairs in which output is maximized, price is minimized and the consumers are able to make their own choices. The overall intention of Competition policies is to protect the consumers from unfair market practice. For this, there arises the need for the Government to intervene to stimulate and preserve a competitive environment. Phrases like “substantially lessening of competition,” “anti-competitive agreements and practices” and “abuse of dominant position” are relevant and come within the scope of a Competition regime.
As no general competition law currently exist in Nigeria at the moment, the relevant competition provisions are embedded in the NCA & its subsidiary Competition Practices Regulations (CPR) 2007 which are both applicable in the Nigerian Communications market.
The competition concerns of network neutrality can be viewed from various angles in Nigeria, for instance and depending on the particulars of a conduct, it seems likely that blocking access to broadband access (for the purpose of inducing a subscriber to migrate to another service) or discriminating in favor of a service provider with whom the broadband network provider has some sort of contractual relationship with, is likely to be caught by Sections 9 e and 14 e of the CPR which respectively provides:
discriminating in the provision of interconnection or other communications services or facilities to competing Licensees, except under circumstances that are objectively justified based on supply conditions, such as discrimination based on differences in the costs of supply; and
exclusive dealing agreements, pursuant to which a Licensee enters into an agreement with another party for the supply of products or services on an exclusive basis, and where that exclusivity has or may have the effect of substantially lessening competition in related communications markets.
For instance an exclusive dealing agreement precludes a supplier’s competitors from doing business with the buyer during the agreed period. In the broadband market, an ISP might enter into agreement with content or application providers to provide exclusive, or preferential, access to consumers. In such instances, an ISP might arrange to allow access only to a single service provider and the other service providers are then be denied last-mile access to that ISP’s customers or end users.
In enforcing these provisions, the Nigerian Communications Commission (NCC), the sector regulator will be guided by the provisions of Section 91 (2) of the NCA and Section 6 of the CPR which both emphasize that in assessing whether any conduct is capable of “substantial lessening of competition” reference will be made to the following circumstances; the relevant economic market, the impact of the conduct on existing market players, the impact of the conduct on barriers to market entry and the impact of the conduct on consumers. The test here is to determine the extent of encumbrance against market competition which results in a significant injury to either the competitors or consumers or both. In the case of an exclusive dealing arrangement the assessment goes beyond the number of competitors closed out, as competition authorities worldwide seem to have a convergent opinion in assessing exclusive dealing arrangements where the market definition, the amount of foreclosure in the relevant market, the duration of the contracts, the extent to which entry is deterred, and the reasonable justifications, if any, for the exclusivity are all taken into account.
While a conduct capable of “substantial lessening of competition” seems like a potential threat to the consumers access to broadband services, the claim by proponents of network neutrality that internet data discrimination is anti-competitive seems to be forward looking as the major concern as is in the United States is focused on not what broadband network providers are currently doing, but rather on what they are capable of doing.
THE CURRENT NIGERIAN POSITION ON NETWORK NEUTRALITY
Though no specific Network Neutrality Law currently exists in Nigeria, however (bearing in mind that one of the primary goals of the NCA is to ensure that fair competition exists in the communications sector and that the rights of all consumers and service providers are protected) in the context of interconnection and access to network facilities/services embedded in Sections 96-103 of the NCA, 2003, in particular Section 97 b mandates that all interconnection agreement comply with the principles of neutrality [emphasis mine], transparency, non-discrimination, fair competition, universal coverage, access to information, equality of access and equal terms and conditions. Though neither this section nor the NCA has given a proper description of what constitutes neutrality, however it is safe to assume that this section intends to ensure the absence of prioritization measures or differential treatment of communications traffic when interconnecting with other licensees or providing access to network facilities to interested parties.
Another passive instance of network neutrality can be found in the grant of a licence for the provision of internet services under Section 32 of the NCA. In particular condition 5 of the Licence provides:
5.1 The Licensee shall not (whether in respect of charges or other terms or conditions applied or otherwise) show undue preference to or exercise undue discrimination against any particular person or persons of any class or description in respect of;
a) the provision of a service under this Licence; or
b) the connection of any equipment approved by the Commission.
5.2 The Licensee shall be deemed to have shown such undue preference or to have exercised such discrimination if it unfairly favours to a material extent a business carried on by it or by its lawful telecommunications associates in relation to any of the matters mentioned in paragraph 5.1 so as to place at a significant competitive disadvantage persons competing with that business.
These provisions without mentioning “network neutrality” has in some implicit way taken a stance in favour of network neutrality by making it a license condition that internet access providers must not show “undue preference to” any person. The subsequent provision goes further in defining a conduct indicative of “undue preference” as indiscriminately giving preference in the provision of internet service and or in the connection of any equipment approved by the commission to the business of its “lawful telecommunications associates.” A breach of these provisions is likely to entitle the NCC to revoke the internet license of the licensee.
CONCLUSION
The reality on ground is that the Nigerian broadband access market is still very much in its infancy stage, more market entry is needed for the market to be more competitive. The argument here is that increased broadband market participation is likely to reduce discriminatory practices as was noted in the US by AT & T Chairman Ed Whitacre that “Any [network] operator that blocks access to content is inviting customers to find another provider. And that’s just bad business.” Whether the likelihood of broadband discrimination is real or imagined in the absence of any network neutrality regime in Nigeria, notice must be taken of the vision of the NCA and the National Communications policy which includes inter alia, the promotion of easily accessible communications services for Nigerians.
Whichever way the pendulum swings, effective consumer protection will be needed for effective market competition to be sustained. In this vein, Service Level Agreement that addresses consumer protection concerns will play a role in clearly spelling out the terms of different broadband packages, these material terms may include traffic management practices of the network operator, after all of what use would be the effect of a competition regime if the consumers are not able to exercise their right to choose.
The dabate on network neutrality is likely to change how data is transmitted and consumed online while the question of broadband service discrimination remains alive, however, sight must not be lost of the principles surrounding network neutrality should a law for it become inevitable. These principles as stated by the US Federal Communications Commission (FCC) in its Broadband policy statement adopted on August 5th, 2005 revolves round the rights of broadband consumers to; access lawful content of their choosing, use applications and services of their choosing, connect network devises that to not degrade network performances and finally are entitled to competition among the various service providers. These principles will guarantee that these four basic “Internet Freedoms” are protected and preserved.
Monday, June 28, 2010
SUSTAINING THE COMPETITION, PROTECTING THE CONSUMERS AND MOBILE NUMBER PORTABILITY IN THE NIGERIAN TELECOMMUNICATIONS MARKET
The Nigerian mobile telecommunications market has continued to grow in leaps and bounds creating opportunities for further investments. These investments have continued to increase exponentially in proportion to the increase in the subscribers’ base which currently stands at 96,110,538 connected lines. This has made the Nigerian telecommunications market the largest in the whole of Africa and the fastest growing from a developing nation. The service providers have continued to introduce innovative service offerings to their numerous customers. The latest addition to this is the proposed mobile number portability to be superintended by the Nigerian Communications Commission (NCC) which is supposed to go live on the network of all mobile service providers before the end of September 2010. This service will enable mobile subscribers to retain their mobile numbers when changing service providers.
No doubt, this will create more value for mobile subscribers who will not have to incur more costs when switching service providers.
This article highlights instances where competition and or consumer protection issues are likely undermine the rationale of NCC for mandating mobile number portability in the Nigerian telecommunications market. It also looks at the new role of the NCC as the sector regulator in stemming the tide of these issues.
MOBILE NUMBER PORTABILITY (MNP)
Mobile number portability is a process that enables a mobile subscriber to retain his mobile number when changing from one service provider to another. This is a tremendous improvement from the traditional method where customers were instead required to give up their numbers when switching providers. As a result of this, customers were saddled with the possibility of missing calls from people who do not yet know their new number, printing new contact cards, notifying all their important contacts about a change of their number, e.t.c. This inability to port numbers generally increased the reluctance of subscribers to change service providers, even when they were experiencing poor quality of service (QoS).
According to the NCC, the rationale for the introduction of MNP are the removal of barriers to the freedom of choice of the mobile subscribers in choosing their favorite service provider, ensuring further competition among service providers in service delivery, acts as an incentive for service providers to improve on their services and removal of barriers to market entry. This is the major policy emphasis of a liberalized telecommunications sector.
The international operational standard for implementing MNP is for a subscriber wishing to port his number to contact his new service provider who then arranges the porting process with the old service provider. This is known as the ‘recipient-led’ porting. The other method implementing the porting process is known as ‘donor-led’ where the customer wishing to port his number approaches his service provider (donor) for a port authorization code (PAC) which is given to his new service provider (recipient) for the activation of the porting service.
COMPETITION AND CONSUMER PROTECTION ISSUES
Sustaining open market competition and ensuring that telecommunications’ subscribers are protected in the Nigerian telecommunications market underscores the reason for implementing MNP. A key issue here usually concerns the cost incurred by subscribers when switching service providers as this can be a barrier to entry and or distortion of competition. Without regulatory prompting, service providers see no incentive in providing MNP, since they fear the depletion of their customer base arising from poor quality of service, thus MNP has a significant role to play in ensuring that not only are switching costs kept to a minimum, it can also provide a competitive edge to service provides who have in place, better service delivery mechanisms. By improving customer satisfaction, MNP is seen as a useful tool in encouraging and sustaining open competition in the telecommunications market.
Some of the pertinent competition and or consumer protection issues likely to undermine the benefits associated with the implementation of the MNP process are:
1. Switching costs
In a sufficiently competitive market, telecommunications subscribers will usually switch from a service provider that fails to provide adequate service to another one that provides better service. Doing this, subscribers will usually incur costs if they decide to change their service provider. While many of these costs are non-pecuniary, they may have a significant impact on the total call value of a subscriber or may pose a barrier to the late market entry of a competitor. Some of the costs incurred when switching to another service provider are: - the need for a compatible equipment in instances where a GSM service subscriber may wish migrate to the network of a CDMA service provider, in switching, the subscriber will usually acquire a new handset compatible with the CDMA network. The second source usually involves the transaction cost of the switching process as subscribers may be required to register and apply to port their numbers as the process may be charged for a fee. Another source of worry is the cost (usually time and money) spent in printing new stationary with your new numbers and informing your current contact list about this change of number.
When these costs are substantial, it’s likely to result to subscriber lock-in effect to networks of particular service providers even when competing brands offer lower prices and better service quality. In addition to this, some service providers may actually require that subscribers intending to port their numbers pay an exorbitant fee. In close proximity to this would be the penalty fee to be paid by post paid (contract) subscribers who may wish to terminate their contracts so as to switch to another service provider. As these subscribers have contractually bound themselves to the service providers for specified periods of time, they are liable to pay termination fees if they choose to terminate their contract at an earlier time.
When these fees border on the high, it tends to inhibit switching and may constrict the subscriber’s choice. This may also be a source of competition worry as new market entrants may not be able to attract customers away from incumbent service providers.
2. Port Duration
This is the time it takes from when a porting process is initiated till the time it ends. The NCC recommended timeframe is 2 working days based on the existing network capability in Nigeria. Despite this recommendation, the possibility still remains that service providers may use slow procedures in churning a subscriber so as to discourage them from switching. An incumbent service provider with a large subscriber base can actually manipulate the timeframe by either denying or prolonging the porting process, if this happens, then it would be contrary to NCC’s intention for the porting duration and be in direct conflict with section 12 of the Consumer Code of Practice Regulations 2007 which provides that: licensees shall provide services within any service supply time targets set out in the Commission’s Quality of Service Regulations…
3. Subscribers Win-back Strategies
MNP will introduce new strategies for service providers in retaining or winning back their subscribers. These strategies may take the form of marketing calls to subscribers of rival service providers offering discount or promoting selective offers with the main aim of poaching them. A standard feature of a winback strategy is that it is targeted at only a portion of the competitor’s customers who were once customers of the incumbent. As this strategies are a form of selective price discrimination towards the competitors customers, it may constitute anti-competitive behavior aimed at marginalizing new entrants. The post-Chicagoan school of economic thought posits that such selective discount offered to theses former customers is likely to have an adverse effect on the competition by suppressing long-term efficient entry into the market. This school of thought believes that the main purpose of any form of predatory pricing is to drive out the competition. The competition implication of winback strategies continues to be an important factor in any liberalized sector.
4. Tariff Transparency
Without MNP, subscribers are usually able to identify the service providers through their number prefixes. With MNP, this identification is lost since the number prefix does not automatically indicate the network ascribed to a given number. As a result, if calling prices differ between different networks (as is usually the case), subscribers may be unaware of the exact charges for placing calls to mobile networks, a similar scenario to this from an economic perspective is that the consumers will have no knowledge of the price of goods or service they wish to purchase.
Previous studies have indicated that service providers may have incentives for increasing rates for terminating calls on their networks based on the ignorance of the subscribers about the relevant prices. This study has also suggested that MNP may deteriorate the customers’ price information. Full tariff transparency is therefore lost and unless NCC as the regulator intervenes for the prices to be changed, callers may actually have to pay more than expected for certain calls.
THE WAY FORWARD
As rapid technological changes continue to shape the Nigerian Telecommunications market, the behavior of subscribers will continue to be impacted, presenting new challenges for the NCC. The main focus of this challenge will be to ensure that favorable market conditions exist which thrives on technological innovations, whilst still ensuring that the interests of subscribers are protected.
When competition is sustained, then the subscriber’s right to exercise his choice is unimpeded. As switching costs have an implication for the structure and competitiveness of the markets where telecommunications technology incompatibility in the mobile phone industry makes both physical capital and human investment into particular service unassignable. To ensure that consumer enjoy the benefits of migrating to the network of their choice service provider, NCC must play a role in ensuring that switching costs are kept to a minimum. Service providers must be deterred from even the slightest possibility of leveraging on the size of their (locked-in) subscribers by arbitrarily raising the price of their service.
The NCC recommended timeframe for porting should be religiously complied with and rigorously enforced so as not to discourage the churning of subscribers. An intentional contravention of this directive will amount to a breach of both the QoS and Competition Practices Regulations, making the defaulting service provider liable to enforcement measures from the NCC.
Even though, it is NCC’s intention not to implement restrictions to customers win-back by service providers, it must take cue from competition authorities in North American and European countries, where win back strategies have come under serious scrutiny. For instance, in 2004, the Kansas Corporation Commission enforced a win-back prohibition forbidding the incumbent from attempting to win back a customer within 30 days of the switching. NCC should toe the post-Chicagoan way by recognizing that win-back strategies under certain conditions may have the effect of lessening the competition.
The ability of customers to be able to predict calls they place must not be eviscerated by MNP. NCC recommends that this capability shall be provide in real time by a beep, a display of the tariff or service information on the subscriber’s terminal screen or voice recorded announcement before a call to a ported number is going to incur a different cost than it would have been charged before the number was ported. The regulatory best practice is to ensure that subscribers are well informed about prices, NCC must work diligently to ensure that service providers comply with this best practice.
The role of the NCC in Nigeria is not a static one, it continues to shift according to the dynamics of the telecommunications market, it is primarily focused on achieving a sustained competition that guarantees the protection for the rights of the subscribers. The implication flowing from this will be the attraction of more investments into the market.
Finally the goal of all liberalized markets is to ensure competition, once this is achieved, the right of the consumers to choose remains unrestricted. The NCC in all case must be ready to intervene if this competition comes under threat.
MNP does actually stimulate competition, if implemented properly will lead to a lowering of switching cost, resulting in added value to the existing services already been enjoyed by the Nigerian telecommunications subscribers.
No doubt, this will create more value for mobile subscribers who will not have to incur more costs when switching service providers.
This article highlights instances where competition and or consumer protection issues are likely undermine the rationale of NCC for mandating mobile number portability in the Nigerian telecommunications market. It also looks at the new role of the NCC as the sector regulator in stemming the tide of these issues.
MOBILE NUMBER PORTABILITY (MNP)
Mobile number portability is a process that enables a mobile subscriber to retain his mobile number when changing from one service provider to another. This is a tremendous improvement from the traditional method where customers were instead required to give up their numbers when switching providers. As a result of this, customers were saddled with the possibility of missing calls from people who do not yet know their new number, printing new contact cards, notifying all their important contacts about a change of their number, e.t.c. This inability to port numbers generally increased the reluctance of subscribers to change service providers, even when they were experiencing poor quality of service (QoS).
According to the NCC, the rationale for the introduction of MNP are the removal of barriers to the freedom of choice of the mobile subscribers in choosing their favorite service provider, ensuring further competition among service providers in service delivery, acts as an incentive for service providers to improve on their services and removal of barriers to market entry. This is the major policy emphasis of a liberalized telecommunications sector.
The international operational standard for implementing MNP is for a subscriber wishing to port his number to contact his new service provider who then arranges the porting process with the old service provider. This is known as the ‘recipient-led’ porting. The other method implementing the porting process is known as ‘donor-led’ where the customer wishing to port his number approaches his service provider (donor) for a port authorization code (PAC) which is given to his new service provider (recipient) for the activation of the porting service.
COMPETITION AND CONSUMER PROTECTION ISSUES
Sustaining open market competition and ensuring that telecommunications’ subscribers are protected in the Nigerian telecommunications market underscores the reason for implementing MNP. A key issue here usually concerns the cost incurred by subscribers when switching service providers as this can be a barrier to entry and or distortion of competition. Without regulatory prompting, service providers see no incentive in providing MNP, since they fear the depletion of their customer base arising from poor quality of service, thus MNP has a significant role to play in ensuring that not only are switching costs kept to a minimum, it can also provide a competitive edge to service provides who have in place, better service delivery mechanisms. By improving customer satisfaction, MNP is seen as a useful tool in encouraging and sustaining open competition in the telecommunications market.
Some of the pertinent competition and or consumer protection issues likely to undermine the benefits associated with the implementation of the MNP process are:
1. Switching costs
In a sufficiently competitive market, telecommunications subscribers will usually switch from a service provider that fails to provide adequate service to another one that provides better service. Doing this, subscribers will usually incur costs if they decide to change their service provider. While many of these costs are non-pecuniary, they may have a significant impact on the total call value of a subscriber or may pose a barrier to the late market entry of a competitor. Some of the costs incurred when switching to another service provider are: - the need for a compatible equipment in instances where a GSM service subscriber may wish migrate to the network of a CDMA service provider, in switching, the subscriber will usually acquire a new handset compatible with the CDMA network. The second source usually involves the transaction cost of the switching process as subscribers may be required to register and apply to port their numbers as the process may be charged for a fee. Another source of worry is the cost (usually time and money) spent in printing new stationary with your new numbers and informing your current contact list about this change of number.
When these costs are substantial, it’s likely to result to subscriber lock-in effect to networks of particular service providers even when competing brands offer lower prices and better service quality. In addition to this, some service providers may actually require that subscribers intending to port their numbers pay an exorbitant fee. In close proximity to this would be the penalty fee to be paid by post paid (contract) subscribers who may wish to terminate their contracts so as to switch to another service provider. As these subscribers have contractually bound themselves to the service providers for specified periods of time, they are liable to pay termination fees if they choose to terminate their contract at an earlier time.
When these fees border on the high, it tends to inhibit switching and may constrict the subscriber’s choice. This may also be a source of competition worry as new market entrants may not be able to attract customers away from incumbent service providers.
2. Port Duration
This is the time it takes from when a porting process is initiated till the time it ends. The NCC recommended timeframe is 2 working days based on the existing network capability in Nigeria. Despite this recommendation, the possibility still remains that service providers may use slow procedures in churning a subscriber so as to discourage them from switching. An incumbent service provider with a large subscriber base can actually manipulate the timeframe by either denying or prolonging the porting process, if this happens, then it would be contrary to NCC’s intention for the porting duration and be in direct conflict with section 12 of the Consumer Code of Practice Regulations 2007 which provides that: licensees shall provide services within any service supply time targets set out in the Commission’s Quality of Service Regulations…
3. Subscribers Win-back Strategies
MNP will introduce new strategies for service providers in retaining or winning back their subscribers. These strategies may take the form of marketing calls to subscribers of rival service providers offering discount or promoting selective offers with the main aim of poaching them. A standard feature of a winback strategy is that it is targeted at only a portion of the competitor’s customers who were once customers of the incumbent. As this strategies are a form of selective price discrimination towards the competitors customers, it may constitute anti-competitive behavior aimed at marginalizing new entrants. The post-Chicagoan school of economic thought posits that such selective discount offered to theses former customers is likely to have an adverse effect on the competition by suppressing long-term efficient entry into the market. This school of thought believes that the main purpose of any form of predatory pricing is to drive out the competition. The competition implication of winback strategies continues to be an important factor in any liberalized sector.
4. Tariff Transparency
Without MNP, subscribers are usually able to identify the service providers through their number prefixes. With MNP, this identification is lost since the number prefix does not automatically indicate the network ascribed to a given number. As a result, if calling prices differ between different networks (as is usually the case), subscribers may be unaware of the exact charges for placing calls to mobile networks, a similar scenario to this from an economic perspective is that the consumers will have no knowledge of the price of goods or service they wish to purchase.
Previous studies have indicated that service providers may have incentives for increasing rates for terminating calls on their networks based on the ignorance of the subscribers about the relevant prices. This study has also suggested that MNP may deteriorate the customers’ price information. Full tariff transparency is therefore lost and unless NCC as the regulator intervenes for the prices to be changed, callers may actually have to pay more than expected for certain calls.
THE WAY FORWARD
As rapid technological changes continue to shape the Nigerian Telecommunications market, the behavior of subscribers will continue to be impacted, presenting new challenges for the NCC. The main focus of this challenge will be to ensure that favorable market conditions exist which thrives on technological innovations, whilst still ensuring that the interests of subscribers are protected.
When competition is sustained, then the subscriber’s right to exercise his choice is unimpeded. As switching costs have an implication for the structure and competitiveness of the markets where telecommunications technology incompatibility in the mobile phone industry makes both physical capital and human investment into particular service unassignable. To ensure that consumer enjoy the benefits of migrating to the network of their choice service provider, NCC must play a role in ensuring that switching costs are kept to a minimum. Service providers must be deterred from even the slightest possibility of leveraging on the size of their (locked-in) subscribers by arbitrarily raising the price of their service.
The NCC recommended timeframe for porting should be religiously complied with and rigorously enforced so as not to discourage the churning of subscribers. An intentional contravention of this directive will amount to a breach of both the QoS and Competition Practices Regulations, making the defaulting service provider liable to enforcement measures from the NCC.
Even though, it is NCC’s intention not to implement restrictions to customers win-back by service providers, it must take cue from competition authorities in North American and European countries, where win back strategies have come under serious scrutiny. For instance, in 2004, the Kansas Corporation Commission enforced a win-back prohibition forbidding the incumbent from attempting to win back a customer within 30 days of the switching. NCC should toe the post-Chicagoan way by recognizing that win-back strategies under certain conditions may have the effect of lessening the competition.
The ability of customers to be able to predict calls they place must not be eviscerated by MNP. NCC recommends that this capability shall be provide in real time by a beep, a display of the tariff or service information on the subscriber’s terminal screen or voice recorded announcement before a call to a ported number is going to incur a different cost than it would have been charged before the number was ported. The regulatory best practice is to ensure that subscribers are well informed about prices, NCC must work diligently to ensure that service providers comply with this best practice.
The role of the NCC in Nigeria is not a static one, it continues to shift according to the dynamics of the telecommunications market, it is primarily focused on achieving a sustained competition that guarantees the protection for the rights of the subscribers. The implication flowing from this will be the attraction of more investments into the market.
Finally the goal of all liberalized markets is to ensure competition, once this is achieved, the right of the consumers to choose remains unrestricted. The NCC in all case must be ready to intervene if this competition comes under threat.
MNP does actually stimulate competition, if implemented properly will lead to a lowering of switching cost, resulting in added value to the existing services already been enjoyed by the Nigerian telecommunications subscribers.
Saturday, May 1, 2010
THE SCRAMBLE FOR BROADBAND INTERNET SERVICES IN NIGERIA: NEW TECHNOLOGY, NEW CHALLENGES, MORE GOVERNANCE.
In recent times, the rate at which business entities are investing heavily in the provision of broadband internet access has been impressive. The Glo-1 submarine cable, a multi-million dollar project from Glo Nigeria is a submarine cable of 100,000km with landing points in Nigeria, Ghana, Senegal, Mauritania, Morocco, Portugal, Spain and United Kingdom (UK) has a bandwidth capacity of about 640 gigabytes has been operational since the last quarter of 2009. Enter Main one cable system been rolled out by MainOne Ltd. is set to go live in June 2010. This 14,000km long submarine fibre optic cable stretches from Portugal to South Africa with landing points in Sexial in Portugal, Lagos in Nigeria, Accra in Ghana and South Africa will provide high speed internet capacity of 1.92 terabits. The boldest determination so far is the West Africa System (WACS) planned by a consortium of telecommunication companies. WACS will link South-Africa with UK along the western coast of Africa. The design capacity is projected to be at least 3.84 terabits.
While these ventures seem to be a welcome development as it will go a long way in not only providing high speed internet connectivity but will also increase the rate of internet penetration of a country that has been reported (internet world stats) to have 23, 982, 200 (16.1%) of its population access the internet in 2009, me continue to think in the face of this 20th century technological evolution whether Nigeria has lived up to its responsibility under the Internet Governance Forum established during the second World Summit on Information Society (WSIS) held in 2005 in Tunis.
No doubt the internet has changed the way we now live and has impacted tremendously into our lives, it has also spurn myriads of new challenges albeit issues relating to how it is used. Such issues include cybercrime, the protection of children online, internet privacy and copyright infringement amongst many others. All these issues have necessitated a proper implementation of the appropriate internet government solution to mitigate the risks associated with the use of the internet.
The WSIS proposed a working definition of internet governance as “Internet governance is the development and application by Governments, the private sector, and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet” In Nigeria, the emerging issues arising from increased internet usage are:
1. Cybercrime: The ubiquitous nature of the internet has enabled communication on a global scale across computer networks. This has favoured criminals in using the internet as a tool in the perpetration of criminal offences. Prominent examples of these are fraud, identity theft and phishing scams. For a developing nation like Nigeria, finding a response strategy and solution has become fundamental in the beneficial use of the internet. In recent times, Nigeria has come under international pressure to take actions over financial scams facilitated through email services. In 2006, National White Collar Crime Center reported that losses related to the popular Nigerian email fraud averaged about 5,100 USD each. Though Nigeria in response to this challenge ratified the convention on Cybercrime but is yet to enact the Draft Bill on Computer Security and Critical Information Infrastructure Protection Bill 2005.
2. Child Protection Online: The International Telecommunications Union (ITU) has come up with a global initiative with the objectives of identifying risks and vulnerabilities of children (and minors) in cyberspace, creating awareness for these, help in the development of practical tools that will help to minimize these risks and lastly to provide a forum for knowledge sharing for best practises. The child online protection initiative will guarantee that the child is not exposed to harmful or inappropriate content which includes a wide variety of materials such as pornography, violent content and the like. It is important that Nigeria tap into this initiative and adopt strategies to protect our children who will become the leaders tomorrow.
3. Internet Privacy: According to American privacy expert Steven Rambam, “Privacy is dead-get over it”. While a number of industry expert seem to agree with him, National governments are still work to guarantee the privacy of the individual in this age of information explosion. With the proliferation of the internet and its technologies, a lot of individuals are increasingly finding it difficult to control their personal information in cyberspace or decide on whom this information should be disclosed to. In this age of information explosion, personal information if not properly protected could be misused to the detriment of the data subject, this is constantly been manifested by online social and electronic commerce platform where personal information has been mishandled and compromised by the owner of such platforms or by individuals participating on such platforms. It becomes imperative for the Nigerian government to intervene in this instance to safeguard and enforce this fundamental human right.
4. Copyright Infringement: In the words of Harvard Law Professor Lawrence Lessig, “the fear is that cyberspace will become a place where copyright can be defeated”. Copyright is granted protection under both international and national laws, the internet has made it possible for works in which copyright subsists to be easily distributed across computer networks, thereby implicating the owners right of both distribution and communication to the public. Peer-to-peer (p2p) technologies have a role in the infringement of copyright, this technology connects an individual’s computer to another computer whereby information (mostly copyright works) is easily retrieved and distributed over the internet. No doubt, the high speed internet connectivity in Nigeria plays a prominent role in this phenomenon. Because of the near impossibility of identifying the alleged infringers, National governments and copyright owners have targeted Internet Service Providers (ISP) as facilitators of copyright infringement across their network. This has resulted into laws which provides safe harbours for ISPs and defines instances in which they will be exempted from copyright infringement liability under their national laws.
The growing awareness of the social, economic and legal dynamics of the internet has impacted on the Nigerian society and has brought to the front burner the problems associated with its increased usage and has crystallized into topical issues under the internet governance forum. For broadband services to benefit the Nigerian community, the stakeholders in Nigeria (including the Government and ISPs) has a constant and continuous role to play by intervening with policy and technological solutions that will shape the way the internet will be legitimately used in Nigeria leading to the achievement of the goals set under the Internet Governance Forum.
Conclusively the statement of John and Post that “the rise of an electronic medium that disregards geographical boundaries throws the law into disarray by creating entirely new phenomena that need to become the subject of clear legal rules that cannot be governed, satisfactorily, by any current territorially based sovereign” seems to come to mind in the Nigerian case.
While these ventures seem to be a welcome development as it will go a long way in not only providing high speed internet connectivity but will also increase the rate of internet penetration of a country that has been reported (internet world stats) to have 23, 982, 200 (16.1%) of its population access the internet in 2009, me continue to think in the face of this 20th century technological evolution whether Nigeria has lived up to its responsibility under the Internet Governance Forum established during the second World Summit on Information Society (WSIS) held in 2005 in Tunis.
No doubt the internet has changed the way we now live and has impacted tremendously into our lives, it has also spurn myriads of new challenges albeit issues relating to how it is used. Such issues include cybercrime, the protection of children online, internet privacy and copyright infringement amongst many others. All these issues have necessitated a proper implementation of the appropriate internet government solution to mitigate the risks associated with the use of the internet.
The WSIS proposed a working definition of internet governance as “Internet governance is the development and application by Governments, the private sector, and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet” In Nigeria, the emerging issues arising from increased internet usage are:
1. Cybercrime: The ubiquitous nature of the internet has enabled communication on a global scale across computer networks. This has favoured criminals in using the internet as a tool in the perpetration of criminal offences. Prominent examples of these are fraud, identity theft and phishing scams. For a developing nation like Nigeria, finding a response strategy and solution has become fundamental in the beneficial use of the internet. In recent times, Nigeria has come under international pressure to take actions over financial scams facilitated through email services. In 2006, National White Collar Crime Center reported that losses related to the popular Nigerian email fraud averaged about 5,100 USD each. Though Nigeria in response to this challenge ratified the convention on Cybercrime but is yet to enact the Draft Bill on Computer Security and Critical Information Infrastructure Protection Bill 2005.
2. Child Protection Online: The International Telecommunications Union (ITU) has come up with a global initiative with the objectives of identifying risks and vulnerabilities of children (and minors) in cyberspace, creating awareness for these, help in the development of practical tools that will help to minimize these risks and lastly to provide a forum for knowledge sharing for best practises. The child online protection initiative will guarantee that the child is not exposed to harmful or inappropriate content which includes a wide variety of materials such as pornography, violent content and the like. It is important that Nigeria tap into this initiative and adopt strategies to protect our children who will become the leaders tomorrow.
3. Internet Privacy: According to American privacy expert Steven Rambam, “Privacy is dead-get over it”. While a number of industry expert seem to agree with him, National governments are still work to guarantee the privacy of the individual in this age of information explosion. With the proliferation of the internet and its technologies, a lot of individuals are increasingly finding it difficult to control their personal information in cyberspace or decide on whom this information should be disclosed to. In this age of information explosion, personal information if not properly protected could be misused to the detriment of the data subject, this is constantly been manifested by online social and electronic commerce platform where personal information has been mishandled and compromised by the owner of such platforms or by individuals participating on such platforms. It becomes imperative for the Nigerian government to intervene in this instance to safeguard and enforce this fundamental human right.
4. Copyright Infringement: In the words of Harvard Law Professor Lawrence Lessig, “the fear is that cyberspace will become a place where copyright can be defeated”. Copyright is granted protection under both international and national laws, the internet has made it possible for works in which copyright subsists to be easily distributed across computer networks, thereby implicating the owners right of both distribution and communication to the public. Peer-to-peer (p2p) technologies have a role in the infringement of copyright, this technology connects an individual’s computer to another computer whereby information (mostly copyright works) is easily retrieved and distributed over the internet. No doubt, the high speed internet connectivity in Nigeria plays a prominent role in this phenomenon. Because of the near impossibility of identifying the alleged infringers, National governments and copyright owners have targeted Internet Service Providers (ISP) as facilitators of copyright infringement across their network. This has resulted into laws which provides safe harbours for ISPs and defines instances in which they will be exempted from copyright infringement liability under their national laws.
The growing awareness of the social, economic and legal dynamics of the internet has impacted on the Nigerian society and has brought to the front burner the problems associated with its increased usage and has crystallized into topical issues under the internet governance forum. For broadband services to benefit the Nigerian community, the stakeholders in Nigeria (including the Government and ISPs) has a constant and continuous role to play by intervening with policy and technological solutions that will shape the way the internet will be legitimately used in Nigeria leading to the achievement of the goals set under the Internet Governance Forum.
Conclusively the statement of John and Post that “the rise of an electronic medium that disregards geographical boundaries throws the law into disarray by creating entirely new phenomena that need to become the subject of clear legal rules that cannot be governed, satisfactorily, by any current territorially based sovereign” seems to come to mind in the Nigerian case.
DATA PROTECTION ISSUES AND LEGAL IMPLICATIONS IN NCC’S DIRECTIVE ON SIM CARD REGISTRATION
Towards the ending of year 2009, the Nigerian Telecommunications Regulator, Nigerian Communications Commission (NCC) in exercising the powers granted it under the Nigerian Communications Act (NCA) 2003 issued a directive which was published in the Thisday Newspaper of December 31, 2009 to the effect that as from the 1st of March 2010 (according to the to the online news service “Daily Independent,” this date has been postponed to May 1st 2010 ) all new Subscriber Identity Module (SIM) cards must be registered before activation, this will be followed by the subsequent registration of the SIM cards of existing SIM card holders at a later date.
This directive coming from the NCC was borne out of the need to have a credible database of SIM card holders in Nigeria that will be used to identify (for possible prosecution) criminal actors who perpetrate criminal activities through the use of mobile phones by exploiting the anonymity of an unregistered SIM Card.
This paper considers two issues; to identify & address the data protection & privacy issues that arises during the implementation of the SIM card registration process and the legal implications on the criminal model of crimes been perpetrated through the use of mobile phones. Discussing the technical framework for the implementation of this process is entirely outside the focus of this write-up.
Data Protection and the Concept of Privacy under Nigerian Law
The right to privacy is an inalienable human right that cannot be derogated from, neither can it be subsumed under any government law or policy. Though Nigeria presently has no legislative framework for Data Protection, the right to privacy can be traced to the Constitution of the Federal Republic of Nigeria (CFRN) 1999, in particular S. 37 provides “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”
The broad import of this particular statutory provision is to guarantee from interference and intrusion, the private affairs of the Nigerian person. This statement finds meaning in the definition of privacy as “The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of [personal] information [emphasis mine].
When this constitutional right is juxtaposed with NCC’s directive to register SIM cards, one is wont to ask the nature of privacy and or data protection issues involved in the registration of these SIM cards.
SIM cards as the name implies is used to identify subscribers to mobile telecommunications services. It is a removable card that allows the user to transfer its subscribed services to another mobile device.
As there is a dearth of data protection laws in Nigeria, I intend to propose as a reference model the principles contained in the EU wide Data Protection Directive 95/46 EC, as a guide for the implementation of this SIM card registration process. Amongst other things, this directive has been internationally touted as setting the benchmark by which data protection laws are evaluated, the standards set are widely regarded as “high” and places an emphasis on human rights while its principles have been flexible in their approach.
Pursuant to this Directive, data or personal data means any information relating to an identifiable natural person (data subject), the directive also goes further in defining an identifiable natural person as one who can be identified, directly or indirectly, in particular by reference to an identification number… Therefore for data to be “personal”, two conditions must be met, first the data must relate or concern another natural person, secondly, the data must be used in the identification of the natural person. Where data does not refer to a natural person, it falls outside the scope of the EU Directive. As SIM cards contain both the unique serial and international numbers of the subscriber, it no doubt would come within the meaning of “personal data” as contemplated under the EU Directive since another individual can be able to connect the personal data to a natural person.
The capture of the subscribers photograph and biometrics (which undoubtedly is also personal data) as required under the implementation process will be deemed to be the processing and or collection of personal data. (In accordance with this EU Directive), data processing occurs when an operation or a set of operations is carried out upon personal data, whether or not by automatic means. These operations will include the collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure and destruction of personal data.
Since it is evident that due to the nature of the personal information stored in the SIM card database, accessing this database would therefore be implicating the privacy rights of SIM card holders, the question then becomes, under what circumstances will these personal data or information of Mobile telephony subscribers be collected, accessed or used legitimately? This is important in order not to run the risk of abusing stored data by those accessing it as data specifically provided for one purpose might be used entirely in a different context.
The EU Directive has a set of principles that must be adhered to when accessing the personal data of the private individual, it sets out the right of the private individual in regards to his personal data and establishes the general principles guiding the processing of personal data. These principles will be summarized below and related to the proposed SIM card registration in Nigeria:-
1. Data may only be processed where the private individual (data subject) has given consent: For SIM card holders, this consent must be specific and informed, it cannot be inferred from any circumstances nor can this consent be given on the basis of misrepresented facts.
2. Data may be processed when the processing is necessary for the entering into a contract with the private individual: This is fulfilled when the contract between potential SIM card holders and mobile telephony service providers contain clauses to the effect that their SIM cards would be registered, for the existing SIM card holders, it would be necessary to obtain their consent.
3. Data may be processed in order to comply with a legal obligation imposed on the entity in charge of processing the data: That is, the entity in charge of registering SIM cards in Nigeria must legitimately access this information only in so far as it complies with the legal obligation imposed on it.
4. Data may be processed when the processing is necessary to protect the vital interest of the private individuals: A broad meaning should be given to this paragraph in so far as the processing of the personal data would be necessary to protect the interest of SIM card holders.
5. Data may be processed when processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the data controller or in a third party to whom the data are disclosed. To rely on this paragraph, the relevant question then becomes, would accessing the SIM card database be justified on the basis of public interest which would override the privacy rights of SIM card holders.
6. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. SIM card holders must be allowed access to this database at any time and to make the necessary correction of their personal data as contained in this database.
7. Personal data can only be processed for specified explicit and legitimate purposes and may not be processed further in a way incompatible with those purposes: This is the main thrust of any good data protection policy. What is the main purpose of registering SIM cards in Nigeria? Legitimate processing requires that uses of the personal data must be known and publicly stated at the time of registration. A 2006 decision of a German court comes to mind here, where the demand by a public prosecutor investigating a criminal case to access personal data stored on a SIM card of an on-board unit in a truck was denied by the court. The court was of the opinion that the German Federal Toll Collect Act, on which the collecting of SIM card data is based, restricts the use of toll data to only the control of toll payments. In this regard, access to the SIM card database in Nigeria must be restricted to only the purpose(s) specified by the NCC i.e. cases of criminal activities perpetrated through the use of mobile telephones, to override such a purpose would require legal justification and authorization.
Legal Implication
NCC’s directive to register SIM cards will trigger some practical implications for criminals intending to sustain their desire for committing crimes through the use of mobile telephony services. Some criminals in order to sustain this desire and circumvent their identification will have to migrate to other criminal models that will continue to guarantee anonymity to them. These models will be considered under three heads in the following:
1. SIM card cloning: Occurs where the information contained in one SIM card is replicated for the purpose of making fraudulent calls, the billing for which would be incurred by the owner of the cloned SIM card rather than the perpetrator. To achieve cloning, the Electronic Serial Number (ESN) and Mobile Identification Number (MIN) has to be successfully retrieved from the target phone for transfer to the cloned phone. When this happens, calls can be made from the cloned phone as if it were the original phone. It is possible for criminal entities to exploit SIM card cloning technologies so as to beat the identification process inherent in SIM card registration.
2. Roaming services: Roaming has been defined as the ability for a cellular customer to automatically make and receive voice calls, send and receive data, or access other services, including home data services, when travelling outside the geographical coverage area of the home network, by means of using a visited network. Now consider this scenario, a criminal obtains an registered SIM card outside Nigeria from a service provider that offers roaming services within a Nigerian service provider’s network. It is obvious here that this criminal has successfully circumvented the NCC registration process by virtue of this roaming service and can still be able to perpetrate his criminal intentions through this service within Nigeria.
3. Internet/Satellite Telephony: With services like Skype and the scramble for broadband services in Nigeria, Internet telephony seems to have found a niche for itself, on the part of Satellite telephony, this particular service connects to satellites in orbit rather than terrestrial cell towers. All these services can be used to circumvent NCC’s registration process and perpetrate criminal activities.
From these criminal models, it is obvious that NCC’s intention may not be sufficient to address the purpose for registering SIM cards, the author believes that a system of identity management should be implemented in the mobile telephony sector. This will help to address issues of anonymity posed in the mobile telephony sector.
Conclusion
Even though NCC’s directive commences today May 1st 2010, it still presents some level of data protection issues that must be addressed. As national governments are becoming more aware of the importance of a good data protection framework, Nigeria must consciously strive to ensure that the personal data (in whatever form) of the Nigerian person is safeguarded. No doubt, it goes without saying that the common Nigerian person values his privacy and should not be exposed to situations where his personal data is arbitrarily processed or accessed, the glaring realities of the lack of the appropriate legislative solutions put in place to address data protection issues is already been manifested in an IT savvy Nigerian society. We need to re-engineer our legislative processes to accommodate the challenges presented by data protection, in the absence of the appropriate law, it becomes safe to place reliance on the principles enshrined under the EU model for data protection which still remains a role model for implementing data protection laws worldwide.
As per curbing the menace of criminal activities perpetrated through mobile phones, a system of identity management should be implemented and enforced in the mobile telephony sector (however this is achieved is entirely outside the scope of the author’s knowledge), this will ensure that anonymity in the mobile telephony sector is not exploited so as to commit criminal activities.
Why protect personal data? I am constrained again to reiterate that the right to privacy is inalienable, it can never be derogated from.
This directive coming from the NCC was borne out of the need to have a credible database of SIM card holders in Nigeria that will be used to identify (for possible prosecution) criminal actors who perpetrate criminal activities through the use of mobile phones by exploiting the anonymity of an unregistered SIM Card.
This paper considers two issues; to identify & address the data protection & privacy issues that arises during the implementation of the SIM card registration process and the legal implications on the criminal model of crimes been perpetrated through the use of mobile phones. Discussing the technical framework for the implementation of this process is entirely outside the focus of this write-up.
Data Protection and the Concept of Privacy under Nigerian Law
The right to privacy is an inalienable human right that cannot be derogated from, neither can it be subsumed under any government law or policy. Though Nigeria presently has no legislative framework for Data Protection, the right to privacy can be traced to the Constitution of the Federal Republic of Nigeria (CFRN) 1999, in particular S. 37 provides “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”
The broad import of this particular statutory provision is to guarantee from interference and intrusion, the private affairs of the Nigerian person. This statement finds meaning in the definition of privacy as “The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of [personal] information [emphasis mine].
When this constitutional right is juxtaposed with NCC’s directive to register SIM cards, one is wont to ask the nature of privacy and or data protection issues involved in the registration of these SIM cards.
SIM cards as the name implies is used to identify subscribers to mobile telecommunications services. It is a removable card that allows the user to transfer its subscribed services to another mobile device.
As there is a dearth of data protection laws in Nigeria, I intend to propose as a reference model the principles contained in the EU wide Data Protection Directive 95/46 EC, as a guide for the implementation of this SIM card registration process. Amongst other things, this directive has been internationally touted as setting the benchmark by which data protection laws are evaluated, the standards set are widely regarded as “high” and places an emphasis on human rights while its principles have been flexible in their approach.
Pursuant to this Directive, data or personal data means any information relating to an identifiable natural person (data subject), the directive also goes further in defining an identifiable natural person as one who can be identified, directly or indirectly, in particular by reference to an identification number… Therefore for data to be “personal”, two conditions must be met, first the data must relate or concern another natural person, secondly, the data must be used in the identification of the natural person. Where data does not refer to a natural person, it falls outside the scope of the EU Directive. As SIM cards contain both the unique serial and international numbers of the subscriber, it no doubt would come within the meaning of “personal data” as contemplated under the EU Directive since another individual can be able to connect the personal data to a natural person.
The capture of the subscribers photograph and biometrics (which undoubtedly is also personal data) as required under the implementation process will be deemed to be the processing and or collection of personal data. (In accordance with this EU Directive), data processing occurs when an operation or a set of operations is carried out upon personal data, whether or not by automatic means. These operations will include the collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure and destruction of personal data.
Since it is evident that due to the nature of the personal information stored in the SIM card database, accessing this database would therefore be implicating the privacy rights of SIM card holders, the question then becomes, under what circumstances will these personal data or information of Mobile telephony subscribers be collected, accessed or used legitimately? This is important in order not to run the risk of abusing stored data by those accessing it as data specifically provided for one purpose might be used entirely in a different context.
The EU Directive has a set of principles that must be adhered to when accessing the personal data of the private individual, it sets out the right of the private individual in regards to his personal data and establishes the general principles guiding the processing of personal data. These principles will be summarized below and related to the proposed SIM card registration in Nigeria:-
1. Data may only be processed where the private individual (data subject) has given consent: For SIM card holders, this consent must be specific and informed, it cannot be inferred from any circumstances nor can this consent be given on the basis of misrepresented facts.
2. Data may be processed when the processing is necessary for the entering into a contract with the private individual: This is fulfilled when the contract between potential SIM card holders and mobile telephony service providers contain clauses to the effect that their SIM cards would be registered, for the existing SIM card holders, it would be necessary to obtain their consent.
3. Data may be processed in order to comply with a legal obligation imposed on the entity in charge of processing the data: That is, the entity in charge of registering SIM cards in Nigeria must legitimately access this information only in so far as it complies with the legal obligation imposed on it.
4. Data may be processed when the processing is necessary to protect the vital interest of the private individuals: A broad meaning should be given to this paragraph in so far as the processing of the personal data would be necessary to protect the interest of SIM card holders.
5. Data may be processed when processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the data controller or in a third party to whom the data are disclosed. To rely on this paragraph, the relevant question then becomes, would accessing the SIM card database be justified on the basis of public interest which would override the privacy rights of SIM card holders.
6. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. SIM card holders must be allowed access to this database at any time and to make the necessary correction of their personal data as contained in this database.
7. Personal data can only be processed for specified explicit and legitimate purposes and may not be processed further in a way incompatible with those purposes: This is the main thrust of any good data protection policy. What is the main purpose of registering SIM cards in Nigeria? Legitimate processing requires that uses of the personal data must be known and publicly stated at the time of registration. A 2006 decision of a German court comes to mind here, where the demand by a public prosecutor investigating a criminal case to access personal data stored on a SIM card of an on-board unit in a truck was denied by the court. The court was of the opinion that the German Federal Toll Collect Act, on which the collecting of SIM card data is based, restricts the use of toll data to only the control of toll payments. In this regard, access to the SIM card database in Nigeria must be restricted to only the purpose(s) specified by the NCC i.e. cases of criminal activities perpetrated through the use of mobile telephones, to override such a purpose would require legal justification and authorization.
Legal Implication
NCC’s directive to register SIM cards will trigger some practical implications for criminals intending to sustain their desire for committing crimes through the use of mobile telephony services. Some criminals in order to sustain this desire and circumvent their identification will have to migrate to other criminal models that will continue to guarantee anonymity to them. These models will be considered under three heads in the following:
1. SIM card cloning: Occurs where the information contained in one SIM card is replicated for the purpose of making fraudulent calls, the billing for which would be incurred by the owner of the cloned SIM card rather than the perpetrator. To achieve cloning, the Electronic Serial Number (ESN) and Mobile Identification Number (MIN) has to be successfully retrieved from the target phone for transfer to the cloned phone. When this happens, calls can be made from the cloned phone as if it were the original phone. It is possible for criminal entities to exploit SIM card cloning technologies so as to beat the identification process inherent in SIM card registration.
2. Roaming services: Roaming has been defined as the ability for a cellular customer to automatically make and receive voice calls, send and receive data, or access other services, including home data services, when travelling outside the geographical coverage area of the home network, by means of using a visited network. Now consider this scenario, a criminal obtains an registered SIM card outside Nigeria from a service provider that offers roaming services within a Nigerian service provider’s network. It is obvious here that this criminal has successfully circumvented the NCC registration process by virtue of this roaming service and can still be able to perpetrate his criminal intentions through this service within Nigeria.
3. Internet/Satellite Telephony: With services like Skype and the scramble for broadband services in Nigeria, Internet telephony seems to have found a niche for itself, on the part of Satellite telephony, this particular service connects to satellites in orbit rather than terrestrial cell towers. All these services can be used to circumvent NCC’s registration process and perpetrate criminal activities.
From these criminal models, it is obvious that NCC’s intention may not be sufficient to address the purpose for registering SIM cards, the author believes that a system of identity management should be implemented in the mobile telephony sector. This will help to address issues of anonymity posed in the mobile telephony sector.
Conclusion
Even though NCC’s directive commences today May 1st 2010, it still presents some level of data protection issues that must be addressed. As national governments are becoming more aware of the importance of a good data protection framework, Nigeria must consciously strive to ensure that the personal data (in whatever form) of the Nigerian person is safeguarded. No doubt, it goes without saying that the common Nigerian person values his privacy and should not be exposed to situations where his personal data is arbitrarily processed or accessed, the glaring realities of the lack of the appropriate legislative solutions put in place to address data protection issues is already been manifested in an IT savvy Nigerian society. We need to re-engineer our legislative processes to accommodate the challenges presented by data protection, in the absence of the appropriate law, it becomes safe to place reliance on the principles enshrined under the EU model for data protection which still remains a role model for implementing data protection laws worldwide.
As per curbing the menace of criminal activities perpetrated through mobile phones, a system of identity management should be implemented and enforced in the mobile telephony sector (however this is achieved is entirely outside the scope of the author’s knowledge), this will ensure that anonymity in the mobile telephony sector is not exploited so as to commit criminal activities.
Why protect personal data? I am constrained again to reiterate that the right to privacy is inalienable, it can never be derogated from.
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