The telecommunications bill proposed by the government, if enacted into law as it is, would allow state security agencies to record telephone conversations of any individual and also access personal information exchanged through the Internet without permission from the court.
The draft of the bill includes provisions that would give Nepal Police, National Investigation Department and Nepal Army the authority to access such personal details of civilians directly from telephone and Internet service providers.
The government is preparing to present the bill to amend and integrate laws related to telecommunications in the House of Representatives after the Cabinet gave its consent in principle to present it in Parliament.
The bill allows recording of any individual’s conversations for investigation, but it has not mentioned its procedure. It has not even involved the court in an act of gathering personal information such as recording civilians’ conversations.
“The authorized investigating agency of the state can record calls, acquire other details that reveal identity including services from service-providers for the purpose of investigation of any individual involved in activities against the sovereignty and integrity of Nepal and national interest, and crimes,” the draft of the bill states. “The provision for installing mechanism for direct access to the systems of service-providers and access to information using appropriate technology for this act will be as specified.”
The draft bill prepared by the government has also violated an earlier order of the Supreme Court.
A verdict by the then Supreme Court Chief Justice Kalyan Shrestha and Justice Devendra Gopal Shrestha in 2015 stated that permission should be obtained from the district court concerned for gathering information during the course of investigating a crime.
The verdict stated that crime investigation is the prerogative and responsibility of the executive and access to necessary resources and areas can be granted for the purpose.
Earlier, the then government headed by KP Sharma Oli had also advanced a Special Service Bill through the National Assembly allowing interception of communication devices for spying.
The bill was met with opposition citing the possibility of its interference in the personal lives of citizens. National Assembly members had registered an amendment to include a provision in the bill requiring the court’s permission for gathering information. But when it was passed, the bill included a provision that required the chief investigating director to explain the grounds and reasons for collecting information in a written decision and keeping a record of it.
The bill had reached the House of Representatives (HoR) after it was passed by the National Assembly, but it became inactive as it was not passed even by the end of the HoR's term.
The present government has proposed allowing recording of any individual’s telephone conversations and other details in the telecommunications bill itself and not in the bill on spying.
In this way, the government appears to be trying to gain access to civilians’ personal information on the pretext of investigation. But what is the international practice?
According to the fourth amendment to the United States Constitution, an investigation body can access an individual’s telephone and other details only after an arrest warrant for them is issued by the court.
In Britain, investigation agencies can access an individual’s telephone conversations and other information only after the Home Ministry issues an arrest warrant.
In Canada, Germany, and France, permission from a judge is mandatory for listening to telephone conversations and accessing call records.
The Telecommunications Act of Australia also allows law enforcement agencies to record telephone conversations only after an arrest warrant is issued.
But investigation agencies in countries such as China, Russia, India, Thailand and Malaysia have been recording personal conversations without the court’s permission.
Senior advocate Satish Krishna Kharel says that the draft of the bill prepared by the government is “unconstitutional”.
“From a human rights point of view, it is politically and constitutionally inappropriate,” Kharel told Setopati. “Generally, investigation agencies are not under civilian control. Therefore, the bodies that issue orders such as recording of telephone conversations should be under civilian control.”
Kharel says there should a binding provision of civilian authority in such acts. But such acts have a high possibility of being misused, he adds.
“Its biggest problem is misuse. Therefore, the country’s security will be strengthened in the long-term if the system is created such that it cannot be misused. According to the current bill, any government employee could record telephone conversations in the name of national security,” Kharel said.
He said that telephone conversations should be recorded for national security but we should look at the international practice on how to do it. “If there’s a case against the person whose telephone is recorded or tapped, then details would be presented in court, but if there’s no case, then there should be a provision to publish it after some time.”
“Suppose Oli’s phone is tapped when Prachanda [Pushpa Kamal Dahal] is in government. If the Prachanda government taps Oli’s phone because it feels Oli poses a threat to national security, then those details should be made public after four years or within a specified period even if Oli is not tried for treason,” Kharel said.
There should be a provision of public disclosure for making public how many people’s phones were tapped during the four-year period, who did not face legal action, who was the officer to order the tapping, and who tapped the phones, he added.
Kharel said telephone tapping would be misused in the absence of such a provision.
Senior advocate Radheshyam Adhikari says acts such as telephone recording should be carried out only with the court’s permission.
“What we’re saying is let the state carry out tapping with the court’s permission if investigation about me, Radheshyam Adhikari, is necessary. Let there be tapping if the government finds my activities objectionable, but there should be a trustworthy body to get permission for it,” Adhikari said. “We should not confine the state to such an extent that it cannot function.”
The draft prepared by the government also includes many provisions that are in the National Civil Code and the Criminal Code.
The draft has provisions of fining Rs 500,000 to Rs 2.5 million for slandering, threatening or causing unnecessary trouble through telecommunication mediums. The National Civil Code and the Criminal Code also include provisions of action against slander, libel and harassment through telephone.
The government has claimed that there are no problems with the provisions included in the bill.
Netra Prasad Subedi, spokesperson for the Ministry of Information and Communication, said the issue of recording telephone conversations for crime investigation purposes is not inappropriate.
“The draft has been prepared, it is necessary to introduce a new act instead of the one from 1997,” Subedi said. “Details will be sought if investigation is necessary. The draft has been prepared so as to make them available during that time.”
Subedi said the draft is still under discussion. “It has not been finalized. We have received the Cabinet's consent in principle. I went through it again, I think there are no objectionable issues.”
“The ministry will now give [it] final shape and register [it] in the Parliament Secretariat,” he said.
After the government registers the bill in Parliament, lawmakers will discuss it and propose amendments. The bill will be enacted into law if both the Houses pass it and then the president signs it.