Opinion

Protecting privacy rights
from wiretapping

Debates over the interception of communication have recently heated up. This is a result of intense wiretapping practices conducted by law enforcement agencies in their effort to uncover crimes, especially of the organized and transnational variety.

Discourses pushing for the harmonization of wiretapping-related regulations have emerged ever since the Constitutional Court mandated in its judicial review of the 2008 Information and Electronic Transaction Law that the state should enforce a single and centralized rule on wiretapping.

However, wiretapping is undoubtedly an effective mechanism in a criminal investigation. It is the preferred choice when investigators are dealing with an extraordinary crime like corruption. Wiretapping is also a useful instrument to prevent and detect crimes. In Indonesia, law enforcers tend to resort to a wiretapping mechanism when looking for solid evidence.

Despite the “success” rate of wiretapping in unveiling crimes, the mechanism tends to abuse several human rights, especially when tapping practices are not well regulated or monitored and involve agencies that are not on any leash.

Wiretapping by law enforcement agencies and other state bodies remains a controversial matter, given its conflict with citizens’ rights to privacy.

The 1945 Indonesian Constitution specifically guarantees the protection of citizens’ privacy rights. Article 28 G paragraph (1) says that everyone has the right to the protection of his or her private life, family, honor, dignity and property.

The protection of privacy rights also appears in several laws, including Article 32 of Law No. 39/1999 on human rights. The state’s guarantee of privacy rights strengthened after Indonesia ratified the 1976 International Covenant on Civil and Political Rights (ICCPR) in 2005.

Indonesian laws also restrict the unlawful interception of communication as stipulated in Article 40 of Law No. 36/1999 on telecommunication, which says: “all persons are prohibited from eavesdropping in any form whatsoever on information channeled through telecommunication networks”.

However, these laws do not thoroughly regulate how to conduct wiretapping and where to file complaints should law enforcement agencies violate the rights of privacy, as they are not constructed in accordance with the principles of human rights.

Wiretapping practices bring about good and bad results, but Indonesia is far from offering up a holistic regulation on the matter. Worse, regulations on wiretapping overlap each other.

Let us take a look at one of the major problems the country faces: There is no single and integrated regulation on wiretapping practices. Procedures and mechanisms on wiretapping are stipulated in several regulations, only resulting in legal uncertainty. There are at least 12 laws, two government regulations and two ministerial regulations that outline the practice of wiretapping, in the name of law enforcement, by state institutions.

In Indonesia, wiretapping practices are conducted by numerous state agencies for different purposes. The law on psychotropic drugs, for instance, allows law enforcement agencies to conduct telephone wiretapping and recordings based on a permit issued by the National Police chief. Law No. 35/2009 on narcotics allows the National Narcotics Agency (BNN) to intercept information with the District Court’s approval. In the event of an emergency the BNN is allowed to wiretap people without the court’s consent, but must subsequently report the wiretapping.

The Terrorism Law also gives a permit to police investigators to wiretap and record conversations upon the court’s approval. Corruption Eradication Commission (KPK) investigators are authorized to intercept communication and record suspicious conversations only based on the approval of KPK commissioners, without the court’s approval.

The 2011 State Intelligence Law allows the interception of communication for intelligence purposes by the order of the National Intelligence Agency (BIN) chief with the consent of the district court chief.

Those practices are hardly found in other countries. Commonly, the authority to approve wiretapping requests lies only in one hand, either in the executive, judiciary or in the investigating magistrate.

Indonesia does not have a single authorization on wiretapping and various authorizations have created uncertain monitoring standards for agencies conducting wiretapping practices.

This opens up the possibility of a conflict of interests among the agencies concerned. At the same time, legal uncertainty also places citizens’ privacy rights in danger.

There are different time measurements on wiretapping. The Psychotropic Drugs Law stipulates that the wiretapping permit is valid for 30 days. The Narcotics Law allows wiretapping to be carried out within three months and could be extended for another three months.

The Intelligence Law permits six months of wiretapping, which can be extended if necessary. This unclear time span is prone to wrongdoing. The Terrorism Law gives a time span of one year for wiretapping practices. Meanwhile, the KPK Law places no time restrictions on wiretapping.

In the absence of a regulation on how to use wiretapped materials, malpractices on wiretapping are potentially rampant. Ideally, a regulation on wiretapped materials should contain; (1) access restrictions; (2) procedures; (3) relevant wiretapped materials; (4) procedures on presenting wiretapped materials as evidence; and (5) an obligation to destroy wiretapped materials once they are no longer used in the investigation for the sake of the protection of privacy rights.

As these regulations are far from ideal, wiretapped materials can be easily accessed by anyone, including by unauthorized individuals. The materials could also be widely broadcast through various media without tight restraints.

Indonesia has yet to provide a special complaint mechanism for wiretapping practices that are conducted without objective control, legitimate procedure and illegal authority. The absence of such a mechanism will also give rise to human rights violations.

The writer is a researcher and human rights advocate at the Institute for Policy Research and Advocacy (ELSAM).

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