There is no doubt that “Cyberspace creates new potentials for good and evil, for creative expression and criminal exploitation” but the issue is, at what point can a government say cyberspace has become a threat to a country’s national security for the citizens to have zero right to privacy. This is to raise concerns with the National Signals Bureau (NSB) Bill that may have been passed by Parliament as an Act by the time I finish writing this article.
Clause 3 of the National Signals Bureau (NSB) Bill empowers the NSB to amongst others monitor, collect, analyse and disseminate information from cyberspace, electronic media to counter threats to security so as to prevent and deter the commission of a serious crime in the country (emphasis mine).
On the face of it, this may sound good but is a double edged sword that would be an infringement of our Constitutional right to be left alone (Right to Privacy- Article18(2) of the 1992 Constitution of Ghana) and may not be any different from the Prevention Detention Act , 1958.
First let us look at some relevant definitions of cyberspace and electronic media to appreciate the extent of this potential infringement.
Cyberspace is the said to be the “notional environment in which communication over computer networks occurs” or the “conventional means to describe anything associated with the Internet and the diverse Internet culture” or “concept describing a widespread, interconnected digital technology” or the interactive space created for interaction and exchange on the Internet.
Electronic media includes any equipment used in the electronic communication process such as television, radio, telephone, desktop computer and handheld device. Basically, these are communication devices which are used to interact and communicate among people.
Now that we know what cyberspace and electronic media is, go back to read what clause 3 of the NSB Bill intends to do and you would realise the extent of the infringement of our fundamental human rights to be left alone. Your phone is potentially no more private? Your emails are potentially no more private? Your internet searches are potentially no more private? Your voice communication is potentially no more private? Your social media correspondence that is (whatsapp, Instagram etc) are potentially no more private?
Right to privacy
Right to privacy has been a fundamental human right issue even before the advent of the advancement in ICT and so the United Nations General and other International organisations saw the need to include provisions on the Right to Privacy and Ghana is no exception.
Article 17, International Covenant on Civil and Political Rights 1966 states that:
“No one shall be subjected to arbitrary or unlawful inference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation” and “Everyone has the right to the protection of the law against such interference or attacks.
Article 18 (2) of the Constitution of Ghana states that:
“No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.”
This Right to Privacy has received judicial pronouncements by the Supreme Court of Ghana. Particularly in more recent times is the case of Cubagee Vrs Asare and Others (NO. J6/04/2017) . The court, in making a determination as to what constituted privacy and throwing light on same, stated that “privacy is so broad a constitutional right that it defies a concise and simple definition. It comprises a large bundle of rights some of which have been listed in the article as privacy of the home, property, and correspondence or communication. This list is not exhaustive and the full scope of the right of privacy cannot possibly be set out in the text of the Constitution. However, under the right to privacy is covered an individual’s right to be left alone to live his life free from unwanted intrusion, scrutiny and publicity. It is the right of a person to be secluded, secretive and anonymous in society and to have control of intrusions into the sphere of his private life”.
Furthermore, the court was of the view that “privacy is a very important human right that inheres in the individual and ensures that she can be her own person, have self identity and realise her self worth. It guarantees personal autonomy for the individual and without it public authorities would easily control and manipulate the lives of citizens and undermine their liberty. It is one of the most widely demanded human rights in today’s world for the simple reason that advancements in information and communication technology have made it extremely easy to interfere with privacy rights. As a result almost all states have passed laws and detailed regulations to protect privacy rights and prescribe circumstances under which public authorities, private organisations and, in some countries, individuals may be permitted to interfere with privacy rights… When a person talks on telephone to another the conversation is meant to be oral communication since if the speaker wanted the speech in a permanent form he could elect to write it down or record and send to the other person. It would be wrong for the person at the other end to assume that the speaker has waived his rights of privacy and consented to him recording the conversation and rendering it in a permanent state. Therefore, to record someone with whom you are having a telephone conversation is to interfere with his privacy beyond what he has consented to. In similar vein, it would amount to breach of privacy to put your phone on loudspeaker for the listening of third parties when you have a telephone conversation with another person because to so would be causing an intrusion into the caller’s private sphere beyond what she consented to. Before recording someone or allowing third parties to listen to what he says on telephone, his consent must be sought or he must be informed such that he can decide to end the call if he does not want to be recorded or heard by third parties” The Courts of Ghana therefore refused to join the jurisdictions that permit secret telephone recording by a party to the conversation.
This can clearly show how important the right to privacy provision is in Ghana and the above legal considerations can be summarized by what Judge Cooley called “the right to be left alone” which no doubt has implications for communication in the online world.
The above notwithstanding, it is trite that the exercise and enjoyment of fundamental rights and freedoms such as stated above are not absolute but qualified thus, subject to the rights and freedoms of others and the public at large.
Conditions for surveillance
It must be acknowledged that there is motivation from national security in tampering with the privacy of individuals in cyberspace. Inasmuch as the cyberspace is noted to create new potentials, opportunities, consumer choice and power it simultaneously creates new threats and risks to national security. This creates an interplay between two major issues.
The first is with the individual’s ability to control and “significantly influence the collection and handling of data” on them which has to do with their information privacy, and secondly, the tendency of the State to rightly or wrongly monitor the “actions or communication” of individuals by way of data surveillance.
There may be legitimate and legal reasons for wanting to as a matter of routine, purposively control and manage individual’s personal data, communication and correspondence whilst in cyberspace but as the Constitution says it must be in accordance with law and as may be necessary in a free and democratic society for public safety (emphasis mine).
Hence there is always a competition between private and public interests and these competing interests are construed by the courts harmoniously, see Justice Dery v Tiger Eye PI, Chief Justice & A.G [2015-2016] 2 SCGLR 812 by a balancing act, where there is an overriding public interest. Also see GLOGSAG V AG & 2 ORS, SUIT NO. J1/16/2016 per Sophia Akuffo JSC (as she then was); RAPHAEL CUBAGEE; GIBA V AG AND BAFFOE BONNIE V A.G. Therefore, with every guaranteed human right under the Constitution, comes an overriding responsibility, which is toward the public interest or greater good.
The Supreme court has held times without number [see more recently; Civil and local Government Staff Association of Ghana v Attorney General and Others (J1/16/2016)  GHASC 18 (14 June 2017) that in determining the validity of any statutory or other limitation placed on a constitutional right, the questions that need to be determined are:
- Is the limitation necessary? In other words, is the limitation necessary for the enhancement of democracy and freedoms of all, is it for the public good?
- Is the limitation proportional? Is the limitation over-broad such as to effectively nullify a particular right or freedom guaranteed by the constitution?
What is the security position in Ghana that as a matter of urgency, there is now the need to pass the National Signals Bureau (NSB) Bill to lawfully infringe on our privacy to communication and correspondence as necessary in a free and democratic society for public safety? Is Ghana under attack for which there is the need to take away the Constitutional right of privacy to communication and correspondence? Is Ghana under serious security threat? Has Crime in Ghana become serious?
If the answers to the above is in the negative then why the need and urgency to amongst others monitor, collect, analyse and disseminate information from cyberspace, electronic media to counter threats to security, so as to prevent and deter the commission of a serious crime in the country? However, if the answer is in the affirmative; then it can be said that there is a need for this piece of legislation.
Cyberspasce surveillance technology
Surveillance has been in existence before the advancement of technology and quoting from Roger Clarke:
“People have always left tracks behind them. Apart from the physical footsteps we leave in the dust and the mud, some of the people who see us, and who we talk to, remember the events”
The above statement for me holds true for individual’s using the Cybersapce. It is possible for an Internet Service Provider (ISP) to amongst others know the sites visited by an individual and activities performed, literally keeping log of the tracks left by users.
The advancement of ICT and especially the Internet has revolutionized if I should say the “manual surveillance” as described by Roger Clark to a “digital” one where there is no need to physical trail anyone but once access can be gotten to an individual’s personal data and profiled, whatever needs to be known can be known.
Providers of telecommunication services have the capacity to know a lot about those using their network. A device known as the IMIS-Catcher that is capable of locating the country code, network code, geographical cell area, telephone number and the unique handset code (IMEI) can be used to locate users of mobile handsets. The mere fact that it is technically possible to have such data on the individual and more so invisibly is scary and should be of concern to any individual.
The European Commission article 29 working party report on privacy on the Internet (WP37) indicated that:
“Users are not aware that their browser will automatically transmit a unique ID, IP address, and complete URL of the webpage which may include the keywords typed on the search engine with details of content being read”.
An article by Daniel Garrie and Rebecca Wong states that:
“… technologies have become so sophisticated that it is possible to extract personal information from clickstream data and thus, identify specific individuals from this process”.
The technology exist for the Processor Serial Numbers (PSN) of microprocessors installed on computers connected to the Internet to be used as unique identifiers of individuals, invisibly tracking their activities thus risking their right to privacy. This was a major concern with the introduction of the Pentium III chip processors.
Using cyberspace no doubt leaves “electronic footprints”. Considering the possibility and capability of surveillance in cyberspace, identifying or not identifying users on the Internet in my opinion, is a balance between the individual’s fundamental human right to privacy and the obligation of mostly a nation state to protect her citizens by wanting some traceability on those who are security risks or using the Internet for fraud save illegitimate surveillance as enshrined in Article 12 of the 1992 Constitution of Ghana.
In the off line world, this is like opening and resealing of every mail through the post office and installing recording devices in our homes which may be understandable in times of national security crisis. Do we have a national security crisis?
Once the National Signals Bureau (NSB) Bill is passed into law, every Ghanaian including journalist, the judiciary will be at risk and must assume zero privacy in their communication and correspondence.
The Bill once passed by Parliament as an Act will be an attempt to lawfully interfere with our communication and correspondence. This, in my opinion, may not be any different from the Prevention Detention Act, 1958 which under the same national security reasons led to the infamous Re Akoto case.
Consequently, the constitutionality or otherwise of such a legislation must be subjected to the Supreme law of the land by invoking Articles 2(1) and 130 of the 1992 Constitution. Such a legislation may, in my opinion be inconsistent with the Constitution and thereby be in excess of the powers conferred on Parliament under the Constitution and must hence be declared void by the Supreme Court.
Finally, I leave us with Esther 7: 10 “So they hanged Haman on the gallows that he had prepared for Mordecai. Then the king’s wrath subsided”
The author holds an EMBA (IT Management). LLB and an LLM (IT & Telecommunication). Email: [email protected] or visit kofianokye.blogspot.com