The communications regulatory Authority of Namibia (Cran) introduced mandatory SIM card registration in Namibia in January.
This was in line with the provisions of Section 77 of the Communications Act of 2009.
The deadline for this registration is 31 December.
There is division among the public on the matter, because without registration your SIM card will be blocked.
Some Namibians don’t have a problem with registration, while others are concerned about the information, and, more importantly, how this information would be used.
The most important questions therefore are: What information is required, what is retained, and how can this information be used?
Part 6 of Chapter V of the act deals with the interception of telecommunications.
The Oxford Dictionary describes “interception” as “the action or fact of receiving electronic transmissions before they reach the intended recipient”.
Some synonyms of interception include interference, stopping, interfering with, and interposing. This alone should give us a moment’s pause.
If you own a cellphone or any other electronic device that uses a SIM card, you need to visit your service provider and register this SIM card before 31 December.
You will not be able to purchase a SIM card in the future without providing the information requested.
Cran has launched a sensitisation and information campaign on the matter.
The service provider must collect the full name, address and some form of identification of which a copy must be provided, from each customer.
Information obtained from juristic persons, such as companies, will follow similar requirements of proof.
This sounds fairly straightforward.
However, once a SIM card has been registered, the following information can be accessed without further notice:
• the phone number and identification document of the customer,
• the internet protocol address allocated to a specific customer,
• numbers called if generated by the customer, and the calling numbers if other parties initiated
the call, and
• the date, time and duration of the telecommunication.
This information must be stored by the service provider for a period of at least five years, following the cancellation of the contract.
The question and concern is: Why?
The response is that this information can be used to combat crime, with a focus on child pornography, organised crime or terrorism.
So, who gets to access to this information?
The short answer is only the government.
A police officer or a member of the Namibia Central Intelligence Services (NCIS) requiring information must submit a written request to a judge or a magistrate for authorisation to obtain the same from the service provider.
The request is to be made under a statement of oath.
The judicial officer will then consider whether the information requested is “necessary or relevant”, and may then issue an order approving the request if so satisfied.
While this may not sit well with many, it is even more concerning that should a member of the Namibian Police decide that it would be counter-productive to wait for a court order, the information can be requested from a designated staff member of the telecommunications service provider.
If this staff member on ‘reasonable grounds’ believes such information is urgently required, he or she can provide the information requested.
While the names of such delegated staff members must be provided to Cran, there are no requirements concerning qualifications or training, and those delegated are most likely not to have training in legal matters.
While the police officer can be disciplined for not first obtaining judicial authorisation, this is not so in the case of the staff member.
The result is that a person, without a court order, can ostensibly provide information to the requesting party.
The decision to provide this private information is placed in the hands of an authorised employee of the telecommunications service provider who would carry a very heavy responsibility.
Furthermore, there is no duty to inform the customer either before, during or after the interception.
This could easily lead to system abuse and the exposure of the customers’ private information.
The big question is therefore: Is this practice constitutional?
Article 13 of the Namibian Constitution protects the right to privacy confirming that no person shall be subject to interference within the privacy of their homes, correspondence or communication save as is “necessary in a democratic society in the interest of national security”.
A major concern is that this would allow the authorities to know who is phoning whom.
For example, the possibility to publish a damning exposé that references confidential informants may be hampered due to the concern that informants will be identified.
This interference may also affect attorney/client privilege.
Identity theft is also of major concern.
Major concerns include that:
• interception can take place in respect of every customer and not just those reasonably suspected to be connected to a crime or terrorist activities,
• there is no duty to inform a customer that this information was provided to a government authority, and
• that a designated staff member of the telecommunications service provider is charged with the decision
as to whether to provide sensitive information without a court order.
If you do register your SIM card, you will have to accept that the information referred to above will be available to government authorities.
This concerning change can well remind one of the activities of the security forces under the apartheid government.
This article was made possible by the support of the Hanns Seidel Foundation.
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