Ensuring judicial oversight in lawful interception

During the July-August mass uprising in Bangladesh, there were widespread concerns among citizens that phone calls and internet activities were under government surveillance, sparking fears of potential detention by the law enforcement based on information so acquired. While spyware refers to malicious software designed to gather information about a person or organisation and send it to another party, often violating the user's privacy, lawful interception involves the authorised, legally approved monitoring of telecommunication services by the government agencies. It is crucial to review the current legal framework for lawful interception in Bangladesh and emphasise the urgent need for judicial oversight to ensure compliance with these standards.

Lawful interception has become an important tool for the law enforcement agencies and other government services around the world for investigating and prosecuting criminal activities and terrorist operations. The concept of lawful interception has been introduced in Bangladesh by amending the Bangladesh Telecommunication Amendment Act 2001 in 2006. The newly inserted section 97A of the Act allows the government, in the interest of national security or maintaining law and order, to authorise law enforcement, intelligence, or national security agencies to intercept, record, or collect information from telecommunications service providers. The service providers are legally required to comply with these orders. This provision overrides any conflicting regulations in other laws. Notably for the purpose of this section, the government implies the Ministry of Home Affairs. Although our law allows lawful interception and also has established a monitoring center, still there is no discussion regarding judicial oversight mechanisms for lawful interception activities. Judicial intervention is crucial because the right to privacy is enshrined as a fundamental right under Article 43(b) of our Constitution. It has been echoed in the Aynunnahar Siddiqua and Others. v Bangladesh (2016) that, the right to privacy is an essential foundation of the freedom of dissent. So, this right cannot be undermined in the name of surveillance. The Supreme Court of India's 2017 ruling in Justice K.S. Puttaswamy v. Union of India case further highlights that any interception must meet the criteria of legality, necessity, and proportionality to avoid infringing on individual privacy rights.

Furthermore, there are genuine reasons to be concerned over the deployment of such surveillance mechanisms without any judicial oversight as we have experienced plenty of allegations of abuse of authority against members of our law enforcement agencies. Over the last 15 years, rights groups have listed plenty of cases in which people have been charged with sedition for criticising the government activities on social media. Without legal safeguards, putting in place such surveillance systems aimed at suspected anti-state activities carries serious risks of innocent victims being harassed.

Additionally, under the comprehensive telecommunication licensing guidelines introduced by the Bangladesh Telecommunication Regulatory Commission (BTRC), surveillance is not limited to social media activity but extends to a wider array of telecommunications, allowing interception of various forms of communication across multiple diverse platforms.

It is undeniable that lawful interception is essential for national security however when it does not meet the test of legality, necessity, and proportionality it raises serious concerns. In this scenario, it is recommended that a specific legal framework is established whereby surveillance activities are made subject to the said principles. Currently, in practice, the Ministry of Home Affairs holds the sole authority to issue lawful interception orders. However, the legal framework does not clearly outline the process for issuing such orders or provide guidelines on related matters. It is essential to ensure judicial oversight when fundamental constitutional rights are at stake. To introduce accountability in the interception process, a review committee can be formed with representatives from higher judiciary judges, senior officials from the Ministry of Home Affairs, and law enforcement agencies. This committee would review interception orders, and if an order is deemed unjustified, it could mandate the destruction of intercepted materials. A clear timeline should also be set for the committee to review such orders to ensure timely oversight.

The writer is Associate at the Legal Circle.