An Overview of Electronic Surveillance under Ethiopian Law
by Behaylu Girma
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Crime is a common phenomenon all over the world. It has existed since the time humanity began to exist. The current modus operandi of criminals have become technologically sophisticated and they challenge the contemporary methods of investigation.
The proliferation of the Internet and the use of hand-held communications devices, such as cellular telephones and two-way pagers, has increased a criminal's mobility, expanded the reach of his or her criminal enterprise, and shortened the time necessary to plan and execute even the most complex crimes. Thus to investigate these type of crimes - particularly serious crime like organized crime, drug trafficking, and terrorism - unquestionably requires making use of electronic surveillance.
The term "electronic surveillance" is one type of surveillance that's conducted using covert and overt techniques. Although electronic surveillance is a very valuable tool and has yielded tremendous results in some significant investigations, it is also a very intrusive one that threatens privacy rights. These two conflicting yet important goals require finding a balance between the effective use of electronic evidence gathering and the protection of citizen's rights.
Therefore, the purpose of this paper is to examine the place of Electronic Surveillance under Ethiopian laws and add knowledge on the existing gaps in order to assess the impact it'll have on helping the police obtain evidence to begin a criminal investigation. Issues like legal requirements, the approval process, duration and type of crimes that demand electronic surveillance will be discussed. Lastly, a conclusion and possible recommendations are included.
Finding a balance between the government's duty to ensure the safety of its citizens and its duty to protect the individual’s right to privacy is a constant struggle. Although there is no way of knowing whether we are being watched at any given moment and how often, now more than ever before our lives are made visible to government agencies, security services, and website owners. In addition, we willingly disclose our lives on different social networking sites. All this may erode and challenge the protection of the right to privacy.
On the side of the government, security is vital to the success and survival of a country's development. On the 21st century side, security is the path of development. A failure to remain aware of current security threats is the difference between victory or defeat and freedom or imprisonment.
Information is a valuable resource that the government needs for national security. The government uses special investigation techniques to gather information. Electronic surveillance is one of these special investigative techniques that yield tremendous results and supports the investigation process.
On the other hand, it is very intrusive because it threatens privacy rights. A balance therefore must be sought between these two interests. This article addresses an overview of electronic surveillance under Ethiopia laws. Issues like electronic surveillance and the right to privacy will also be addressed.
II. Overview of Electronic Surveillance
There is no universal definition of surveillance.Definitions vary depending on whether it is used as an umbrella term or if it is more narrowly defined. Being technologically advanced appears to be one factor in defining what surveillance is. Previously unavailable methods, techniques and tools for conducting surveillance are now included in the definition of surveillance.
Electronic surveillances are part of technical surveillances that are conducted with the support of technology. They involve the widespread use of telecommunication and electronic materials like the cell phone, internet, radio, and GPS. They are the primary means of gathering information on the day to day activity of individuals. The methods of electronic surveillance have changed as time progresses and are highly dependent on the advancement of technology. It needs technical devices to record, document or monitor targeted individual movements, conversations or activities.
Electronic surveillance is conducted in different ways. Audio surveillance is used to gather audio conversation of the person. It is then intercepted and recorded using phone tapping, Voice over Internet Protocol, listing devices, and room bugging. Visual surveillances are hidden video devices like CCTV. It records the movement and the activities of targeted person. It is used to identify the identity of the person and to whom s/he is contacted. Tracking surveillances are another type of electronic surveillance, which will help identify the location of the person or the vehicles. It is conducted using global positing system (GPS) transponders. Data surveillances are the gathering of data from computer, internet spyware or cookies.
Thus different type of electronic surveillance are an important source of information in the investigation process. It will allow retrieval and analysis of communication and different data of the needed persons without physical access to the person, residence or workplace. Once we have recorded the needed information, we can retrieve it at any time to be used as evidence before a court of law. Compared to traditional investigative techniques, the new development of electronic surveillance provides effective and economical evidence against suspected persons. It can be used to supplement less reliable sources of criminal intelligence such as informants or agents provocateurs. The technology also plays an important role in facilitating deception (including entrapment) during covert operations.
III. Electronic Surveillance and The right to Privacy
The right to privacy is one of the important human rights recognized in different international regional and national laws. It is a base for the enjoyment of other rights. Everyone has the right not to be interfered by others. For the enjoyment of this right, the government has a dual obligation; protecting the interference made by others and not to interfere on others life.
On the other hand, in the name of protecting peace and security, the proliferation of different types of electronic surveillance technologies have provided law enforcement agencies with new powers to intrude individual privacy. The power of the justice machinery expands and the investigation of suspects began to make tradeoffs against the community interests in preventing, detecting, and prosecuting crime. Accordingly, by the name of national security, the development of different surveillance technologies began to challenge the right to privacy of an individual.
The right to privacy is not to be arbitrarily interfered by others, and is one of the fundamental human rights recognized within the framework of the international covenant on civil and political right. Article 17 of ICCPR limits the power of the state to conduct covert surveillance on individuals. These exceptions are "No one shall be subjected to arbitrary or unlawful interference neither with his privacy, family, home or correspondence nor to unlawful attack on his honors and reputation" and "Everyone has the right to the protection of the law against such interference or attacks". The act of electronic surveillance has to be in accordance with the law.
However, there are situations when the individual privacy right is intruded without the knowledge of the persons and recorded in different electronic surveillance devices. For example, in Britain there are more than 4.2 million CCTV cameras — one for every fourteen citizens. In particular, people in central London are caught on camera about 300 times a day.
In Ethiopia there is no clear or distinct law on the right to privacy of the individual. However, the development of constitutional history in Ethiopia reflects an attempt that was made to incorporate the right to privacy in the constitution. Article 26(3) of the 1995 Federal Democratic Republic of Ethiopian Constitution has a basic provision that protects individual right to privacy. According to this article, the government has an opportunity to challenge this right.
There are three important elements that the government has used to challenge this right: There must be compelling circumstances, restrictions must be in accordance with specific laws, and such limitations must be in furtherance of legitimate aims.
Thus, by using this loophole, Ethiopia enacted different laws that allowed the use electronic surveillance — which may intervene and challenge the right to privacy of individuals. Some of these laws tradeoff the due process right on the name of public interest. In some situations it is difficult to attain a perfect equilibrium between these two interests. However, in the implementation of electronic surveillance and special investigation techniques, there has to be a high respect for human rights.
The other issue on the right to privacy and electronic surveillance is the scope of the protection. There is a debate on whether the protection extends to the seizure of intangible property and interests. Electronic surveillance differs from other type of government intrusions because typically there is no seizure of tangibles property, no search of a defined structure or place, and if properly executed, no knowledge of the government action by the target of the search. The intrusion is conducted without trespassing on any property and no physical encroachment on the defendant's property. This advances an argument that the right to privacy does not apply to electronic surveillance. Thus some argue that the right to privacy is only applicable to the seizure of tangible property. For example, in United States up until 1967 (the case of Berger and Katz), different cases ware rejected because connecting a wiretapping device to the telephone lines didn't violate the fourth amendment since the intrusion was accomplished without trespassing on any property of the defendants.
Even if there is restriction on the right to privacy in the international covenant on civil and political rights, there is no clear provision on whether the protection extends to electronic surveillance or not. However, under the European convention on human rights and fundamental freedoms, the protection of the right to privacy extended to the arbitrary use of electronic surveillance.
In Ethiopia those different privacy provisions are found in a dispersed manner in criminal law, criminal procedure law, civil code and constitution. And they are not clear whether the protection extended to the seizure of intangible property and interests or not. However, article 9 (4) and 13 of the FDRE constitution stipulates different international agreements ratified by Ethiopia that are considered an integral part of the law of the land. Thus the current practice of different international instruments reflects the right to privacy also extended to the intangible interests of an individual. Therefore, the protections of those privacy provisions illustrated in different Ethiopian laws are extended to intangible interests of an individual.
IV. Pre-conditions in the use of Electronic Surveillance
A. Provisions authorizing the use of electronic surveillance
The principle of legality is a fundamental rule and is expressed by requiring the existence of a legal framework on the use of those methods or techniques by limiting their circumstances and the time in which they can be used via authorization procedures.
Special investigation techniques cannot be used for all types of crime. Since this type of investigation is sensitive and susceptible to be abused by law enforcement officials, it is only permitted for some specific crime . In most cases, countries permit special investigation techniques like electronic surveillance on organized and serious crime.
To apply electronic surveillance there has to be a clear law that permits law enforcement officials to use such methods on specific crimes. Some countries have clear laws on what type of crimes electronic surveillance investigation would apply. These countries have separate legislation on electronic surveillance. This legislation specifically mentions when and what type of criminal investigation techniques can be used.
On the other hand, there are countries that enact different proclamations and laws that criminalize specific type of crimes. In these laws they incorporate special investigative techniques as one method of investigation. There is no separate legislation that deals with special investigation techniques like electronic surveillance. The law enforcement official gets power from different legislation depending on the type of the crime.
In most countries serious and organized crimes like human trafficking, terrorism, corruption and Trans boundary crimes demand special investigation techniques. And law enforcement officials use electronic surveillance as one investigative techniquefor uncovering serious crimes and organized crimes.
In Ethiopia up until recent times there were no clear laws that limited how and when law enforcement officials can use their special investigation techniques. When a crime was committed, the investigation process was totally governed by the criminal procedure code, which was enacted in 1961. It contains special rules of procedure for investigating and prosecuting crimes, which allowed special investigation techniques for the first time. The law had different provisions that may challenge the right to privacy. For instance, it allows interception of correspondences and letters for the purpose of investigating corruption offenses without judicial warrant. The organization established its own investigators. The proclamation gives the power to the investigators to intercept the communication of the suspected person when ordered to do so. Thus a mere order given by the head of the appropriate organ-Commissioner of the Ethiopian Ethics and Anti Corruption Commission-suffices to intercept private communications protected under Article 26 of the FDRE Constitution. Even if the special procedure allows the use of special investigation techniques, it doesn't exhaustively illustrate what type of special investigation techniques are allowed and how it is applied. It simply asserted that the application of special investigation techniques on corruption crimes is permitted.
Anti-terrorism proclamation is the other document that allows the use of special investigation techniques. The accompanying legislation to the anti-terror law is the Anti-Money Laundering and Financing of Terrorism Proclamation, which was issued immediately after the enactment of the anti-terror law. The 2009 law has been replaced in 2013 with some changes. Like its sister proclamation of anti terrorism, the money laundering legislation incorporates provisions that are apparently challenging the privacy rights of the individual. Like the anti- corruption special procedure, these proclamations do not exhaustively illustrate what type of special investigative techniques are permitted.
Human trafficking proclamation is a recent law that allowed the use of special investigation techniques by law enforcement officials. Though the law is general, it includes the use of electronic surveillance. Upon considering the seriousness of the issue, the ministry of justice has the power to order the interception of the communication of suspected persons on some grounds.
Thus, all these proclamation indicates, there is no clear and distinct law that specifies which type of crimes permit electronic surveillance . The laws governing special investigative techniques exist in a scattered manner on different proclamations. However, these proclamations reveal that the use of special investigation techniques like electronic surveillance are related to serious crimes and organized crimes. In addition to these proclamations, there are intelligence and security service related laws that give power to police and intelligence agencies to use different electronic surveillance techniques in the name of national security. Therefore, the use of electronic surveillance is open ended. In the future, the use of electronic surveillance may be used on other types of crime.
B. Principles on the use of Electronic Surveillance
Being a serious or organized crime is not enough to use electronic surveillance investigation. The suspicion of an offense would not be an adequate reason for surveillance approvals. There are, however, some conditions that need to be fulfilled before the use of electronic surveillance. Electronic surveillance as special investigative techniques cannot be used as first choice. There are some rules that have to be fulfilled before implementing it.
Necessity: the person who will use special investigative techniques must demonstrate that the proposed surveillance measure is absolutely necessary for the purpose of the investigation. S/he has to show that all other means have either been exhausted or are inapplicable. The person who is responsible to investigate the case needs to prove that the targeted person uses electronic materials to facilitate his/her criminal activity. The investigator needs to prove that the use of electronic surveillance is needed to detect the suspected person of their criminal activities. Additionally, the person needs to show that the law allows the use of electronic surveillance on such type of crimes.
Last intrusive: electronic surveillance is very intrusive; the person responsible for using electronic surveillance must show why it needs to conduct electronic surveillance to gather the evidence necessary to prosecute the subject. S/he must show what other investigative procedures have been tried, and if not, why they would be unlikely to succeed or would be dangerous to use. Thus the application must prove that the sought after surveillance measure is the least intrusive one for the purpose of collecting the targeted information.
Proportionality: when invading personal privacy, the measure must be proportionate to the seriousness of the crime. It needs to balance the right to privacy and the protection of security. The interception and intrusion needs to protect the human right of the person. It has to be focus only on the needed information. The person responsible to investigate must terminate the interception of the communication when the communication doesn't concern the criminal matter under investigation or any other type of criminal activities.
In Ethiopia those proclamations that allowed electronic surveillance specify different types of conditions for the use use electronic surveillance as special investigation techniques. Human trafficking and smuggling of migrant's proclamation demand reasonable suspicion by the police and court order to use electronic surveillance as special investigation techniques. Money laundering and financing of terrorism proclamation, upon the authorization of the court, allowed the police officer to use electronic surveillance when there is serious indicators by the suspect person. Anti-terrorism proclamation demands only the authorization of the court to use electronic surveillance. On the other hand, anti-corruption proclamation specify when it is necessary upon the authorization of the appropriate body the surveillance can be conducted.
Thus, the above proclamations have different and no clear principles for the application of electronic surveillance. It is conducted when there is reasonable suspicion, serious indicators, necessary conditions and when the court or responsible organ offer authorization.
C. Who perform Electronic Surveillance?
Electronic surveillance with other special investigative techniques needs to be conducted only by authorized organizations or structures within a state's law enforcement system, including intelligence, counterintelligence, and military intelligence structure.
The units in charge of investigating the respective criminal activities are involved in the surveillance activities. Some states however, utilize specialized institutions that are separate from the police, which perform surveillance instead. This surveillance unites gives the needed information for the investigator and will strengthen the criminal charge.
When national security is involved, or when a serious crime has been committed, there are often special investigation techniques available to specific government agencies – whether they be a specialized part of the police force or an intelligence agency.
Thus, there are two schools of thought on the question of how those security services should be organized. In some countries the security services are independent organizations which are not part of the ordinary police force. Whereas in other countries the security services are a specialized branch in the general police force.
In Ethiopia different proclamations grant different organs the permission to conduct electronic surveillance. Anti-corruption investigator has the power to conduct electronic surveillance when it has enough information on the supposed crime. The interception is conducted when the head of the appropriate organ orders it. The head of the appropriate organ is the Anti-corruption commissioner. On the other hand, for the investigation of terrorism it is the national intelligence and security service who have the power to conduct interceptions. According to this proclamation, the national intelligence and security service needs a court warrant. However, in corruption case the proclamation doesn't say anything about whether court warrants are necessary or not. In a case of money laundering and financing of terrorism, an authorization by the court gives the investigator the power to conduct electronic surveillance. On the crime of human trafficking and smuggling of migrants, the police officer has the power to use special investigation techniques.
All these proclamations do not give the interception power to one organ. These proclamations give power to the police, national intelligence, head of anti-corruption commission, and security service. In addition to this, on specific conditions the intelligence network and security agency has the power to conduct electronic surveillance to protect the peace and security of the country. Therefore, in Ethiopia the electronic surveillance is conducted by the police officers and other security agencies. These organs conduct the interception with and without court warrant.
D. Duration of Electronic Surveillance
The temporary scope of surveillance generally divides into short and long term duration. This differentiation is an important factor in the decision making and the authorization process. The organs who have the power to authorize first consider the type of the crime and the duration of surveillance. In most cases, short term surveillance may range from 24 hours to 48 hours and may only require a simple suspicion that a crime has been committed. Furthermore, in most jurisdictions, short-term surveillance that is initiated under the urgency clause may not require official authorizations from a prosecutor or a judge.
In Ethiopia there are no clear laws on electronic surveillance; in case of human trafficking the justice minister and the police have the power to conduct sudden search and intercept the communication of the suspected person. According to the proclamation, to provide for the prevention and suppression of trafficking and smuggling of migrants, the police must submit evidence for interception within 72 hours in order to get approval by the president of High court.
Long term authorizations periods vary significantly across different countries and in certain cases depend on the type of surveillance to be carried out. The maximum period allowed for surveillance are extendable. Countries use different duration times to accomplish the surveillance. However, the maximum period of surveillance lasts from 2 months to 36 months, depending on the seriousness of the crime.
In Ethiopia, however, there is no one legislation that limits the duration of electronic surveillance. Different proclamations stipulate different durations depending on the type of crime. Proclamation for the prevention and suppression of trafficking in person and smuggling of migrants have no clear provision on how long the interception is conducted. On the other hand, money laundering and financing of terrorism proclamation gives power to the judicial organ to determine the duration of electronic surveillance. However, there is no clear demarcation on how long the specific period should be. The revised ant-corruption and special procedure is a relatively better proclamation that incorporates provisions on the duration of the interception. Accordingly, this article stipulate that unless the head of the appropriate organ decided the duration of the interception, it shall not exceed four months. Thus the laws on the duration of electronic surveillance vary depending on the type of the proclamation.
Special investigation techniques must be applied by relevant authorities in criminal investigations for the purpose of detecting and investigating serious crimes. In most cases, different countries allow this type of investigation for serious and organized crimes. Electronic surveillance is one of the special investigation techniques used to detect the day to day activities of the target person. Since such type of investigation conducted without the knowledge of the target person, it may intrude the right to privacy.
In Ethiopia there is no separate legislation that deals with special investigation techniques. There are different laws and proclamations like the constitution that have provisions on the right to privacy and electronic surveillance. The anti-terrorism proclamation, revised anti- corruption special procedure and rule of evidence, money laundering and financing terrorism, and the recent human trafficking proclamation incorporate provisions on the application of electronic surveillance.
However, those provisions are not full-fledged. The provisions are vague and subject to the discretionary power of the police and other security agencies. Thus the legislature needs to:-
Enact separate laws that deals with special investigation techniques and the right to privacy.
These laws needs to be clear and specifically incorporate what conditions allow violating the right to privacy. With electronic surveillance, the law needs to answer issues like who must conduct electronic surveillance, who gives authorization, what conditions, how the information acquired should be removed, and how long should the surveillance last.
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