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.
