The Nigerien bill giving broad powers to intercept communications

On 29 May, Niger’s Congress voted on a law allowing for broad interception powers of certain electronic communications by the government. The bill makes it lawful for the government to approve the interception of communications without appropriate safeguards or oversight mechanisms.

The law passed with 104 votes – the Nigerien parliament has 171 members – without the participation of the opposition that boycotted the law. The opposition claimed that

the law will allow those, for whose benefit it is adopted, to monitor all Nigeriens, as well as all those who live in Niger, under false pretenses, other than those relating to security and the fight against terrorism

They added

the interception of citizens’ correspondence, even authorized by law, must be the exception, and above all motivated by heavy presumptions on an individual

The law: an unacceptable interference with privacy

In its first article, the law correctly states that any interference with the right to the secret of communications - an element of the right to a private life - is inviolable. The legislation however gives very broad powers and neglects several other human rights safeguards to the exercise of government surveillance, including the proportionality of the measure to the aim sought to be achieved. Not once does the legislation mention proportionality, or the need to consider less intrusive alternative measures prior to the approval of an interception request.

In other words, the law does not require the government to balance the benefits of intercepting a person’s communications against the cost to that person’s privacy, thereby depriving the right to privacy of any real meaning. The law would see the Nigerien state treating individuals whose communications are targeted as guilty until proven innocent.

Here are at least 5 reasons why this law constitutes an unacceptable interference with privacy:

1. The law is overbroad in scope

The law enables the government to intercept communications in all cases where the interception has as its purpose the investigation of any of the following matters: interference with State security and national unity; interference with national defence and territorial integrity; the prevention of and fight against terrorism and transnational criminal networks; the prevention of all forms of foreign interference and enemy intelligence. Any person in relation to whom there is serious reason to believe that the interception of their communications may allow to collect information relevant to the above matters may have their communications lawfully intercepted.

The above is problematic for a series of reasons. First, many of the lawful bases set out by the law are unduly broad and open to a wide range of interpretations. For example, anyone openly challenging the government could be taken as interfering with national unity. Second, the fact that the law allows for interception to take place for investigative purposes irrespective of reasonable individualised suspicion in any of the specified purposes unduly broadens its scope of application. Following the prior example, if someone were considered have any remote linkage with issues pertaining to national unity, the law would make it possible for the government may intercept all of their communications.

2. There is no prior judicial authorisation

The default position should be for any interception request to subject to judicial authorisation prior to the interception taking place. The Niger law, however, paints a different picture. The discretion to approve an interception request lies exclusively with the President.

According to the law, all and any interception requests must be sent to the President for approval. The President’s discretion is very broad: a request may be approved if it has as its purpose the investigation of one of four listed matters relating to national security, ranging from foreign interference to terrorism. It places a concerning amount of power in the executive’s hands to act without any stringent system of oversight from either the legislative or the judiciary.

3. There is no meaningful independent judicial oversight

Although the law creates a committee to review any approved interception requests - the Committee of Control of Security Interceptions - it doesn’t have meaningful oversight powers. Its review can only occur upon notification by the government within 72 hours after the interception request has been approved. Beyond the fact that the notification requirement restricts the mandate of the Committee, the 72 hour grace period granted to the government to notify the Committee of its decision is concerning - within that period, it is perfectly possible for the government to approve a request and for the interception to be carried out.

Only three of the seven committee members are required to have judicial qualifications, and all but 2 are appointed by the executive. As the law stands, the composition of the committee raises questions regarding the independence and competence of its members.

The Committee’s views are also not binding on the government. If in disagreement with the President’s decision to approve a warrant, the Committee may issue a recommendation setting out its opinion. There is no obligation on the government to suspend the interception upon a recommendation of the Committee, and failure to adhere to the Committee’s recommendation does not result in any penalties.

The above renders the Committee’s role as an oversight body largely illusory.

4. Telecommunications companies can be compelled to assist interceptions upon the government's request

The law acknowledges the possibility that the government may lack the technical means to carry out communications interceptions. Where this is the case, the law empowers the minister responsible for electronic communications to compel telecommunications companies to assist in the interception of communications by supplying “qualified agents” to the government.

Under the law, companies do not have the option to challenge any penalties incurred by a refusal to assist the government in surveillance activities. Failure to cooperate is penalised by 1 to 3 years of imprisonment and a steep fine.

These provisions allow the government to access every electronic communication sent or received by individuals on a non-encrypted platform. The remit of communications which the government is likely to be able to access is extremely broad.

5. There is no right to notification or any provision as to remedies for individuals affected

The law is silent as to the existence of a notification procedure. As it stands, there is no obligation on the government to notify the individual of the interception of his communications, whether before or after the interception takes place. This means that a person cannot know if their communications were wrongfully intercepted. In addition, the law makes no provision in relation to remedies for individuals.

In short, the law makes it impossible for targeted individuals to hold the government accountable for surveillance activities or to enforce their privacy rights. In the first place, this significantly undermines the right to an effective remedy.

The risks for Niger civil society

It is not the first time a law has been used in Niger to oppress dissident voices. In the last few years, Nigerien civil society organisations have faced increasing restrictions in the exercise of their work.

Since 2018, multiple civil society protests have been cancelled, with the government relying on public order or terrorism concerns as a justification. Where protests do occur, legal consequences are quick to follow, and severe. As recently as March 2020, several prominent human rights defenders were imprisoned after taking part in a protest relating to the misappropriation of public funds. Some of them are yet to be released, more than two months after they were apprehended, and are being prosecuted.

The bill on interception of communications follows a cybercrime law enacted in 2019 which makes it an offence for any individual to disseminate, generate or make available to other persons information likely to upset public order. According to Amnesty International, this law has been used to prosecute activists.

The bill on interception of communications could have a similar application. Concerningly, the combined operation of the law on interception of communications and the cybercrime law could see hundreds of individuals being prosecuted for expressing themselves freely in what they thought was a private safe space. This will undoubtedly result in the creation of an intimidating and threatening environment where individuals avoid usual fora for civic engagement for fear of being subjected to reprisals.

The government's increased surveillance capabilities

The increased powers given to the government by the bill must be considered in light of Niger’s increased surveillance capabilities.

Niger received €11.5 million from the European Union (EU) for the acquisition and distribution of surveillance drones, surveillance cameras, surveillance software and communications interception hardware. Whilst the grant was made for the specific purpose of fighting human trafficking as part of the EU’s strategy to stem migration from the African continent, any surveillance capability developed within the remit of this project may be easily repurposed, for instance used in the enforcement of this new bill.

Additionally, under the EUCAP Sahel Niger project, Niger currently receives assistance from the EU to fight against terrorism and organised crime. The mission also supports Niger to better manage and control irregular migration flows. Since 2012, the EU has donated €4,9 million worth of unspecified equipment as well as providing training to an estimated 13,000 members of the Nigerien security forces and authorities on various areas of expertise, including surveillance and forensic investigations.

What should come next

The law grants the Nigerien government overly broad surveillance powers without meaningful human rights safeguards. In light of its significant shortcomings and the persistent intimidation of human rights defenders, PI considers:

• The law allowing interception of communications should be repealed.
• Better protections of civil society should be introduced.
• The EU should impose a higher degree of scrutiny on the use of its funds in the Sahel region, taking into account the recipient countries’ human rights records and existing protections for civil society.