The quest for a legally permissible approach to surveillance

The government of Bangladesh has introduced a system of interdiction to prevent activities against the state and the government and has added modern technology like Open-Source Intelligence Technology (OSINT) to the National Telecommunication Monitoring Center (NTMC) to monitor social media on the internet. 

Additionally, the government is planning to launch an integrated Lawful Interception System to legally intercept communications through mobile phones and the internet. 

The Home Minister announced these initiatives about a month ago in the Parliament. 

This article is an attempt to find the answer to some simple questions: How can such interceptions be done legally? Is it possible to protect a simple fundamental constitutional right - the right to privacy of correspondence and communication under any interceptions? 

Privacy of correspondence and communication

According to article 43 of the Constitution of Bangladesh, every citizen shall have the right to the privacy of correspondence and other means of communication. This right is subjected to reasonable restrictions imposed by law in the interests of the security of the state, public order, public morality, or public health.  

In law, a reasonable restriction is a limit placed on a fundamental right or freedom that is considered justifiable and proportionate in the context of a particular situation. A reasonable restriction must have a legitimate aim, be rationally connected to that aim, and must not go beyond what is necessary to achieve that aim.

Limitations on the right to privacy must satisfy certain criteria. These include being necessary, proportional, and aimed at achieving a legitimate purpose, while also complying with international human rights norms (UDHR, Article 12; ICCPR, Article 17).

Need for strict legal and procedural safeguards

Intercepting phone calls can be done legally while protecting citizens' rights by adhering to strict legal and procedural safeguards that are designed to ensure that the interception is necessary, proportionate, and based on a legitimate aim, such as national security or the investigation of serious crime. 

In many countries, including the US and the UK, law enforcement or intelligence agencies must obtain a warrant from a judge or other independent authority before intercepting phone calls. The practice is that intercepting phone calls should be focused only on the information that is relevant to the investigation and should not be broader than necessary. 

Also, there should be an independent oversight body to ensure that the interception is conducted lawfully and proportionately and to review the procedures and safeguard against misuse or abuse of the interception powers. 

Requirement of independent oversight bodies

In the UK, the Investigatory Powers Tribunal (IPT) serves as an independent body that reviews complaints about the use of surveillance powers by intelligence agencies, including the interception of phone calls. The IPT (www.ipt-uk.com) is made up of senior judges and jurists (QC, KC, Lords, Justices, and Lawyers) and operates independently of the government. 

In addition to the IPT, the UK has an independent regulator called the Investigatory Powers Commissioner's Office (IPCO) that is responsible for overseeing the use of surveillance powers by intelligence agencies, as well as other law enforcement bodies. 

The IPCO (www.ipco.org.uk) is responsible for issuing warrants and conducting regular audits to ensure that the interception of phone calls and other forms of surveillance are conducted lawfully and proportionately. 

In the USA, the Foreign Intelligence Surveillance Court (FISC) oversees the government's use of electronic surveillance, including the interception of phone calls, for foreign intelligence purposes. The FISC is an independent court that reviews and approves or denies applications for electronic surveillance warrants submitted by the government.

Besides FISC, there are also various oversight bodies that are responsible for monitoring and reviewing the government's use of surveillance powers, including the Privacy and Civil Liberties Oversight Board (PCLOB, authorised to access all relevant executive agency records, reports, audits, reviews, documents, papers, recommendations, etc.) and the Inspectors General for the Department of Justice, the Department of Defense, and other agencies.

British Government lost a legal battle against general warrants

Privacy International won a landmark case (Privacy International v. Investigatory Powers Tribunal and others, UKSC 2018/0004) on judicial review principles and their applicability to the Investigatory Powers Tribunal.  

On 8 January 2021, the UK High Court quashed a decision by the Investigatory Powers Tribunal (IPT) and held that section 5 of the Intelligence Services Act 1994 does not permit the issue of general warrants to authorise property interference and certain forms of computer hacking. 

The Court referred to cases dating back to the 18th century, which demonstrate the common law's insistence that the Government cannot search private premises without lawful authority even in the national security context. 

The UK High Court emphasised the importance of applying fundamental constitutional principles in modern government hacking and property interference, even though these principles are 250 years old. The court stated that government agencies cannot bypass traditional protections provided by the common law in the context of surveillance.

So what sort of warrant is illegal after the judgement? – A warrant to hack or intercept the mobile phone of any person conspiring to commit acts of terrorism, or any other activity. What is legal then? – A warrant to hack or intercept one or more mobile phones, computers, or other equipment with listed serial numbers or for example a person, seen leaving after looting an ATM booth on a specific date. 

End of the line

Governments around the world believe it is necessary to protect the safety and security of their citizens. However, the use of phone surveillance can be controversial, as it can raise concerns about violations of privacy and civil liberties. 

As a result, many countries have laws and oversight mechanisms in place to regulate the use of phone surveillance and ensure that it is conducted in a manner that respects individuals' rights. 

Saiful Bari is a Legal Editor at a legal-tech organisation. 

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.