TELECOMS PRIVACY IN THE DIGITAL AGE, THE INCIDENCE OF PHONE CLONING, WIRETAPPING AND COMMUNICATION INTERCEPTION IN NIGERIA: THE LEGAL STANDPOINT

The recent interview of Former Governor of Kaduna State His Excellency, Mallam Nasir El-‐ Rufai, on AriseTv has triggered a major backlash from the public, security agencies and other concerned institutions after he claimed to have tapped the devices of the National Security Adviser (NSA) to the President, Mallam Nuhu Ribadu to gain access to his telephone calls. He asserted he got to know about a plan to have him arrested after he listened in on calls made by the NSA himself. These claims has now crystallized into a three counts criminal charge being filed against the Former Governor, bothering on offences provided in sections 12 and 27 of the Cybercrimes (Prohibition, Prevention, ETC) Act, 2015 (amended Act 2024) and Section 131 of the Nigerian Commission Communication Act, LFN, 2004.

The crux of this discourse is not to interrogate the ongoing charges that has been filed against the Fmr. Gov. Nasir El. Rufai since the matter is still pending. The focus of this write up is rather the rights, obligations and narrative arising from what the former governor said. More particularly, the legal framework on wiretapping and communication interception vis-a-vis data protection and right to privacy under the Nigerian legal regime.

To begin with, The Constitution of the Federal Republic of Nigeria, 1999 (as amended) sets the tone for the privacy rights of every person. Section 37 specifically guarantees the right to privacy of citizens, their homes, correspondence, telephone conversations, and telegraphic communications. The express mention of correspondences, telephone communication amongst others indicates that the Constitution considers these forms of communication as worthy of protection and forms part of the private data of individuals at all times.

The foregoing specifically brings to bare the issue of wiretapping of communication. The act of wiretapping seem more common in the course of investigation of an offence by investigative agencies and perhaps the only circumstance under which wiretapping may seem lawful

To this end, wiretapping by a private individual, not withstanding the status of such person in the society, will amount to a reckless violation of the right to privacy of the person whose communication line is wiretapped.

Drawing from the Constitutional provision on right to privacy, several laws have been enacted to cover more complex areas of privacy of persons including the conversations, communications and correspondences, whether online or offline to the effect of securing the sanctity of such privacy.

One of the laws that streams from the Constitution on right to privacy is the Cybercrimes (Prohibition, Prevention, ETC) Act, 2015 with amended Act 2024

Section 12 of The Cybercrime Act makes it an offence for any person to intentionally and without authorization intercept by technical means any non-‐ public transmission of computer data, content, or traffic data (including electromagnetic emissions or signals) to or from a computer or network.

The foregoing provision in other words prohits the use of any sophisticated technical means to electronically eavesdrop or record phone conversations without authorization.

In the same vein, Section 131(2) of the Nigerian Communication Act, criminalize such acts as having the potential to jeopardize public safety.

With the rise in digital surveillance in this tech regime, and the growing rate of technical explosion in innovations, it is important that we are aware of the dangers of phone tapping and interception of phone conversations.

For avoidance of doubt, Section 12 of the Cybercrime Act stipulates two years imprisonment or option for fine or both as punishment for violators. The right to privacy is a fundamental human right, and the essence of this right is defeated if there are no laws put in place to protect conversations from third parties interferences.

For emphasis, the exception to the general provision of the law is when an interception has been duly authorized by way of Court Order, thereby giving the persons intercepting or wiretapping on such other person’s conversation some lawful excuse or legal authority to embark on such exercise. Note that the Court of law would equally not authorize or approve such surveillances and interception except it is absolutely necessary in the circumstances to prevent a crime or apprehend persons involved in a crime particularly for the safety of the general public, or perhaps a top government official.

On a closing note, it is grossly unlawful for any person regardless of position, class or creed, to infiltrate by means of wiretapping, the telephone or computer conversation or any such correspondences of another for any reason except where permission is granted or the machineries of law permits. The law is trite on this, and where anyone runs foul of the law, punishments should greet the crime.

Olufemi Franklin Olufemi Jr. Esq.
Partner and Group Lead, Telecommunications, Media and Technology (TMT) Practice Group.