Section 37 of the 1999 Constitution of Nigeria (as amended) guarantees the fundamental right of citizens to private and family life. The protected rights include the right to correspondence, telephone conversations and telegraphic communications. Section 1(g) of the Nigerian Communications Commission Act also recognizes and protects the rights and interest of both service providers and the consumers.
However, the right to privacy is not absolute as Section 45 of the Constitution allows for derogation from the right to privacy. It imposes restriction on this right to the extent that its exercise will not invalidate any law made by the National Assembly for the purpose or interest of national security, defence, public order and safety. What this means is that this provision creates an exception to the right to private and family life by allowing federal enactments that allow for interference with ones right to privacy.
Leveraging on these exceptions created under the Constitution, the National Assembly has respectively introduced two separate but similar Bills which are on the verge of passage. One of the Bills seeks to amend the Nigerian Communications Commission Act, 2004 by inserting a new section 73 to provide for the “Automatic Access to the Database of all Subscribers to the Nigerian Police and other Security Agencies” while, the other seeks to enable telecommunications carriers or service providers to provide caller location information to law enforcement agencies in emergency situations.
The proposed substitution for Section 73 (1) & (2) of the NCC Act reads as follows:
“73 (1) “From the commencement of this Act, the Mobile –Telecommunications Service Providers shall ensure automatic access to the database of all subscribers to the Nigerian Police and other security agencies as provided in this Act.
73 (2) The Nigerian Police and other security agencies shall for the purpose of criminal investigation access the database of all registered SIM cards.”
Similarly, section 1 of the Caller Location Information Bill provides for the provision of call location information in an emergency situation that involves the danger of death or a serious physical injury “upon request” by a law enforcement official to a telecommunications carrier or mobile service provider. This Bill basically seeks to provide for access to call location information mainly in emergency situations where a user or subscriber has called the law enforcement agency/official for help.
Upon reading the bill, it appears the Nigeria Communication Commission amendment bill is aimed at improving investigative powers of security agencies, checking the activities of terrorists and improving security in the country. It must also be noted that there is currently a bill on cybercrimes and computer misuse before both chambers of the National Assembly, which addresses similar issues. The caller location bill is geared towards empowering security agencies to respond to distress calls.
It is unclear on a comparison of the two bills on why request must be demanded in an emergency situation yet automatically guaranteed for a criminal investigation that may not be potentially life threatening. Also, the Caller Location Information Bill does not provide for the method of how the request may be made.
It should be noted though that in spite of the power given to security agencies and the Police to “automatic access” in a criminal investigation, the NCC remains empowered to investigate the purported breach of civil or criminal acts where there are grounds to believe that such acts have occurred.
Deliberations by the House on these bills are still ongoing. While the bills provisions seem to have its advantages i.e. improved investigative powers and rapid response to distress calls, one still wonders at the loss of privacy issues in the bills and how sensitive subscriber information would be managed given the well known complicity of security agents in abuse of human rights in the name of investigations or counter-terrorism activities. The Nigerian government must as a rule, strive to protect the right to privacy of its citizens while seeking to provide security. It is hoped the National Assembly fully examines the ramifications of the provisions of these bills with derogation from the right to privacy allowed only when found to be absolutely necessary.