The situation is worse than apprehended. Nowadays, phone conversations that do not have any connection with state security or law and order are not only being recorded, but are being leaked in social media. Some television channels run the leaked phone conversations of politicians from opposition parties unashamedly
A significant change was brought in the legal landscape of Bangladesh in 2006. The government was given unrestricted power to record citizens’ personal phone conversations by amending the Telecommunication Act, 2001. For example, according to Section 97 (A), the government could empower any intelligence agency, national security agency or law enforcement agency to record any telephone conversation for the sake of the state’s security and public order. According to Section 97 (C), it was made a punishable offence if any telecommunication service provider does not cooperate.
New Age editor Nurul Kabir and Dhaka University professor Tasneem Siddiqi filed a writ petition with the High Court against the law that year. The court issued a rule asking the government to explain why the law does not go against the constitution. No substantial advancement has been made in the case so far.
The plaintiffs apprehended that it is highly likely that citizens’ freedom of speech and right to privacy would be hampered if the law allows telephone tapping like that of a military government.
The situation is worse than apprehended. Nowadays, phone conversations that do not have any connection with state security or law and order are not only being recorded, but are being leaked in social media. Some television channels run the leaked phone conversations of politicians from opposition parties unashamedly.
Despite the recurrence of such incidents opposing the constitution and laws, no remedy is in view. The government is supposed to take action if the law is violated. The High Court, parliamentary standing committee and National Human Rights Commission have jurisdictions to take suo moto action. Still no appropriate action is being taken against anyone for tapping telephones and making these public on social media or television. On the contrary, in some instances, cases have been filed against the victim based on such leaked conversations.
The situation is such that let alone expressing their opinion freely, many people have been losing the courage to speak even of mundane things.
Over hundred countries of the world have given protection to their citizens’ right to personal communication under laws regarding data protection or privacy protection act. Right to information (RTI) and data protection are like two sides of the same coin. RTI talks about citizens’ right to avail information for ensuring accountability and clarity in rule, and to stop whims. On the other hand, data protection acts protect citizens’ right to privacy from the unrestricted power of the government. The essence of the act is in no way the government could tap citizens’ telephones, or collect, publish or use information from their letters and digital medium with strong evidence of state security. International Covenant on Civil and Political Rights, 1966 ensures this right. As a signatory, Bangladesh has compulsions to obey it.
Our constitution recognises this as a fundamental right. Section 43 of the constitution said that every citizen shall have the right … to the privacy of his correspondence and other means of communication. But this right could be subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health.
The amended telecommunication act, 2006 gave unrestricted power of telephone tapping on the excuse of state security or public order. But this power could never be unrestricted. In 1996, in the verdict of People’s Union of Civil Liberties vs Union of India case, the Indian Supreme Court said, “An order for telephone-tapping … shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department of the Government of India and the State Governments not below the rank of Joint Secretary.” It also said, “If on an investigation the (Review) Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.”
In 2017, in the verdict of justice KS Puttaswamy (Retd) vs Union of India suit, the Indian Supreme Court said, “The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.” The verdict further said if any legal restriction is imposed on the right, it should be logical, for public interests and be subject to the principle of proportionality and it must not be a weapon of the government’s whim. Draft of an act on personal data-protection, composed following the verdict, is currently under vetting of a joint parliamentary committee of India.
In Bangladesh, the High Court expressed concern about this in the verdict of State vs Oli case on 28 August, 2019. The court observed, “It is our common experience that currently citizens’ personal communications, including audio and video, are leaked in social media for different reasons.” The court also said that Bangladesh Telecommunication Regulatory Authority (BTRA) and telephone companies have responsibilities to abide by the rights to citizens in this regard and they cannot give any information of their customers to anybody without following any law consistent to the constitution.
The verdict, however, neither talked about the responsibilities of leaked phone conversation nor did discuss about the legality of Section 97 (A) of the telecommunication act. Since the pronouncement of the verdict, many incidents of not only recording phone conversation but also leaking those on social media have taken place. Sometimes, those could be done by any citizen (for blackmailing or personal enmity). But there is no reason to think that the leaders of de facto opposition BNP or Mahmudur Rahman Manna or Nurul Haque or their political followers leaked their phone conversations for their own peril.
Telecommunication service providers and the government intelligence agencies’ have the highest capabilities to tap telephones of opposition political leaders or dissenters and leaking those online. But neither they have the right to leak those nor any TV channel or any other news media or any other have any right to publish those. According to the ICT and Digital Security Act, these are criminal offences. The government is seen proactive to file suits under these acts in incidents related to expression of opinions but it is not active to stop recording of citizens’ phone conversations and leaking of those.
If the government had taken initiative, it could have brought the TV channels airing those leaked conversations to book and could have found out who are supplying those to them. No such intention was showed by the government. Rather, it is being seen that the leaked phone conversations are helping the government in its political ploys.
This must be stopped without any delay. A privacy protection act is necessary for our citizens. We also should think about why the victims are not confident enough to go to the court even after the spate of leaked phone conversations and why, in spite of condemnations, some TV channels or news media have been making those public.
* Asif Nazrul is a professor at the law department of Dhaka University.
* The article, originally published in the print and online edition of Prothom Alo, has been rewritten in English by Shameem Reza