Is the Freedom to Communicate Subject to Government Fiat?

Monday, December 21, 2009

eavesdroppingAs governments grow bigger, they tend to be surrounded by the morbid fear of what ordinary citizens could be thinking.  Unfortunately, this big brotherly role could go beyond economic patronage to actually attempting to eavesdrop on what citizens think, say and do.  The overly intrusive United Nations Internet Governance project aside, could  the recent directive by Ghana’s National Security  Service on how mobile and Internet communication should be regulated plus the planned communication interventions as per the 2010 budget statement be purely for tax monitoring purposes?  Ace Ankomah, one of Ghana’s finest legal luminary and a friend of IMANI and demands answers  from the Ghanaian government.

Open Letter to Ministers of Finance & Communications – Re: Registration of Mobile Phone Subscribers and Monitoring of Telecommunications

December 2009

The Honourable Minister
Ministry of Finance & Economic Planning


The Honourable Minister
Ministry of Communications

Dear Sirs,

Re: Registration of Mobile Phone Subscribers and Monitoring of Telecommunications

I write to express concern and to pose questions on two matters, namely (i) the demand by ‘National Security’ that mobile phone operators (“Telecom Operators”) must ‘register’ the details of all subscribers, and (ii) portions of the 2010 Budget Statement about plans by the Government to “acquire telecommunications monitoring equipment.” My letter is addressed to you, because primarily, the concerns fall squarely within the purview of your respective ministries. But I make this an ‘open letter’ as the subject is one that the people of Ghana need to be aware of and so that we can all arrive at informed conclusions on the matter.

Before asking the question, I would crave your indulgence to refer to Article 18(2) of the Constitution, which guarantees the citizens’ right to privacy of “correspondence” and “communication” and which provides that this right can only be interfered with “in accordance with law” passed for specified purposes. The Article states expressly as follows:

“No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law 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.”

I note that ‘National Security’ has been pushing, behind the scenes for a long time and recently in public, for the mandatory registration of the details of all mobile phone subscribers in Ghana. I am aware that they now want to set a deadline before 25th December 2009 for the mandatory registration of all new customers. This is to be followed (at a date that has not been specified yet) by the disconnection of any existing, unregistered customers.

I note further that paragraph 621 of the Budget Statement announced a “special audit initiative to cover the telephony sector.” Paragraph 628 announced the establishment of a special Communications Service Tax (“CST” or “Talk Tax”) Unit and the commencement of “procurement process to acquire telecommunications monitoring equipment and software” ostensibly for the CST Unit to track payments. Paragraph 672 mentioned an increase in “monitoring activities” to “enhance compliance” with the CST. Finally, paragraph 864 mentioned, again, the need for “increased monitoring” of the CST to ensure compliance.

Sirs, these would appear innocuous upon first reading. However, read together, the proposed registration and proposed monitoring throw up many questions that beg for answers. These questions are:

1. Is there any suggestion or evidence that Telecom Operators have been cheating on the “Talk Tax”, which will then require the implementation of the monitoring of communications to “enhance compliance”?
2. What are the legal bases for the demands by ‘National Security’ for ‘registration’, and therefore unrestricted access to citizens’ details, from Telecom Operators?
3. Is it the case:
a. That at present, the Police, ‘National Security’ and the Military have easy access to individual mobile phone details by simply writing letters to Telecom Operators, without any court orders;
b. That telecom traffic travels in two types of paths, the ‘voice path’ being that in which the actual conversation moves from one network to another, and the ‘signaling path’ being the means by which one network can communicate with the other about a pending call; and that text messages pass through the signaling path, which is the path that the government wants to monitor;
c. That the Government wants to compel Telecom Operators to send all their signaling through ‘black boxes’ owned by the Government, which would monitor all call traffic (i.e. the originating and destination numbers, the time and length of call) and report the data back to the Government in real time;
d. That if or when implemented, the Government will know who we are, who we call, and how often we call, at the time we are calling;
e. That although the Government may not be able to decipher the actual words of voice calls, it will be able to read every single SMS coming into and leaving networks, and know every website that a person visits on his/her phone or mobile internet device;
f. That however, by simply maneuvering the signaling channel messages, the Government will be able to interrupt, process, intercept, block and/or divert calls, so that the Government can then eavesdrop and know every single detail of happenings on the intercepted calls, without our knowledge and/or the involvement of any competent judicial authority in Ghana;
g. That the current proposed implementation will allow the Government, not only to know who is phoning whom, but also (i) from where to where (with accurate location placement), and (ii) whether a person is roaming and in which country and on which network; and
h. That by this means, it is possible to (i) change signaling so that although a specific call is made, all traces of it can be removed or disguised so that no one can trace its origin or destination, and (ii) create an SMS or call that never existed?

Sirs, as I stated above, this letter is just to ask the questions and to elicit responses, if any. If or when you respond to the above, we will continue with this discussion.

Yours in the service of God and Ghana,

Kojo Anan

cc. The Honourable Minister
Ministry of Information

The Parliamentary Majority Leader
Parliament House

The Parliamentary Minority Leader
Parliament House

The Director-General
National Communications Authority

The Press