MANDATORY REGISTRATION OF SIM CARD : INTERPLAY BEWTEEN CONSTITUTIONAL RIGHTS, STATE SURVELLANCE, CYBERSECURITY AND FRAUD PREVENTION.

 

This is the second time the National Communication Authority (NCA) is undertaking a mandatory registration of SIM cards. The first time I wrote about its impact on Universal Access Obligations of the State as per the International Telecommunication Union (ITU) perspective for which Ghana is a proud member. I am compelled this time to do so again but from a legal perspective, both International and Constitutional.

Under Article 17, International Covenant on Civil and Political Rights 1966 (ICCPR,1996)

“Everyone has the right to life, liberty and security of person” and “No one shall be subjected to arbitrary or unlawful inference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation” and “Everyone has the right to the protection of the law against such interference or attacks”.

Under Article 4, African Charter on Human and Peoples' Rights (ACHPR)

“Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Under Article 18 (2) of the Constitution of Ghana states that:

“No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others” 

Under Article 21 (1)(a) of the Constitution of Ghana states that: 

“All persons shall have the right to freedom of speech and expression, which shall include of the press and other media”

The crux of the mandatory SIM card registration is the fact that the above legal considerations are what Consumers of telecommunication services rely on for their protection of their privacy and rights and at the time the State also using the Constitutional exceptions of “… as may be necessary in a free and democratic society for public safety or the economic well-being of the country…for the prevention of disorder or crime…” to make it mandatory in the public interest.

The question is, how is the State protecting the Consumers’ “Right to Communication” and “Right to freedom of Speech and Expression” by blocking the medium of communication, speech and expression as against the obligation of fraud prevention and cybersecurity without infringing upon the basic fundamental human rights of the citizen.

 

CONSUMERS’ RIGHT TO PRIVACY, COMMUNICATION AND CORRESPONDENCE

Right to privacy has been a fundamental human right issue even before the advent of the advancement of technology. Under the 1992 Constitution, everyone has the right to uninterrupted communication and correspondence with respect to both text and voice communication when it comes to telecommunication technology. This is an inalienable right to us as human beings.

Mandatory registration of SIM Cards and subsequent blocking of unregistered ones after an expiry period is an infringement on this inalienable right with no lawful justification for an exception. Consumers have the right to the protection of the law against such interference or attacks and the Judiciary must protect the citizens which includes themselves from the absolute discretion of power by the Executive arm of government in this registration exercise in the name of separation of powers as well as of checks and balance within the arms of government. It now looks like the citizens are hopeless in their cry in the implementation process being used by the Executive arm of government.

UNIVERSAL ACCESS AND SERVICE OBLIGATIONS BY THE STATE TO THE VULNERABLE.

The International Telecommunication Union (ITU) promotes Universal Access  in that everyone must have access to publicly available communication network facilities and services. The policy objective behind Universal Service is also to ensure that those telecommunications services which are used by the majority and which are essential to full social and economic inclusion are made available to everybody upon reasonable request in an appropriate fashion and at an affordable price. This principle is designed to ensure that people on low incomes, those in remote rural areas, those with disabilities and various other groups who might be described as more vulnerable do not miss out on the advantages telephony can bring.

We in the urban areas owe “Universal Access and Service” obligations to those in the rural areas who feed us and we need to be circumspect in passing directives that may have grave negative impact of widening the gap with our disadvantaged rural users.

Ghana is a proud member of the International Telecommunication Union (ITU) and below is a statement in the “Vote for Ghana ITU Council 2019-2022” campaign:

“We recognize the importance of achieving the objectives of the Sustainable Development Goals (SDGs) especially for emerging economies and will continue our collaborative efforts in meeting the 2030 agenda particularly as our president H. E. Nana Akufo-Addo leads and co-chairs the UN SDG Advocate group”…...Technology will be the key as we strive towards the 2019-2022 period, Ghana will continue to selflessly support the ITU in implementing the policies and Strategic plans on the ITU ‘s key areas…”

Universal Access and Service are key ITU policy initiatives so Ghana should be committed in implementing them. Meanwhile Section 3 (s) of the National Communications Authority Act 2008,  Act769, requires the Authority to support the implementation of the Universal Access Policy. Is blocking of SIM cards supporting this policy?  Should the rural user be punished, denied social and economic inclusion in telecommunication service provision just because a few privileged urban users think crime is being committed or will be committed against them? Certainly not.

If some of us do not get our SIM registered and cut off we may not be too much disadvantaged because we have other options of e-socialising such as skype, Zoom, Twitter and Facebook which does not require having a SIM card. What about the “Kayayo” or person in the rural area who has no other form of communicating and for no fault of hers has no Ghana Card?

Goal 10 of the Development Sustainable Goals (SDG) is about reducing inequalities and ensuring no one is left behind. How does blocking of SIMs help in achieving this. Also Target 10 (a) requires “Special and differential treatment for developing countries”  and so why should we internally not have “special treatment for the rural folks and the less privileged” with respect to this SIM registration?

 

STATE SURVEILLANCE & CYBERSECURITY

Registration of SIM Cards in the name of cybersecurity or fraud is not in itself a bad thing. What is the statistics of fraud caused by users of SIM Cards as against traditional fraud that is making the Executive cut people off with such urgency? The implementation has unfortunately been taken too much from the perspective of “National Security” to the effect that “we are all guilty and must register to prove our innocence”. It then gives an impression that it is more towards “State Surveillance” than the prevention of fraud.

The already captured biometric by the National Identification Authority (NIA) should be available for whatever fraud protection we want. The Telcos are not going to investigate cybercrime by themselves using the biometric database they are setting up but through the law enforcement agencies. The law enforcement agencies subject to the appropriate legal requirements can have access to our “sensitive” biometric database that have already been collected under the Ghana card.

 All that is needed is the link of our Ghana card number to our registered SIM cards for purposes of cybersecurity which can be done remotely without the inconvenience of queuing at the offices of the Telcos during this COVID-19 pandemic. This is the real test of the “digitalization” drive. Walking the Talk.

For cybersecurity, blocking SIM cards is not sufficient reason but a “no brainer” approach. You do not need a SIM card to go into cyberspace to commit fraud. Remove your chip from your phone and connect to a WiFi and see if you can surf the Internet. The rural people do not use Wifi so blocking the SIM card is more disadvantageous to the vulnerable. They are not even the target of cyber fraud and are in the majority as well.

 In my opinion, the only reason for such haste in the implementation despite infringement of the rights of the citizens is for “State Surveillance” and this should be a concern for everyone. Keep quiet till it you become a target and your rights are infringed upon. Today you feel it cannot be you.

INFRIDGEMENT OF DATA PROTECTION ACT, 2012 (ACT 843)

The Telcos and the National Communication Authority are capturing our biometrics again for the purpose of the SIM registration when the Ghana card which already has our biometrics is being used as the only form of identification and linkage.

Section 22 of Act 843 allows the Telcos as data controllers to collect personal data for a purpose which is specific, explicitly defined and lawful and is related to their functions or activity but the Telcos under sections 20 and 23 of Act 843, must make us the citizens aware of the purpose and giving us the right to object or stop such processing.

Section 19 of Act 843 requires that personal data is only processed if the purpose for which it is to be processed, is necessary, relevant and not excessive. Though the biometrics may be relevant for cybersecurity purposes, the Ghana card which is the only identification document to be used already has our biometrics making the re-capture unnecessary and excessive.

The General Data Protection Regulation (GDPR), that regulates data protection and privacy in the EU for example; prohibits the processing of biometric data for the purpose of uniquely identifying natural persons with very limited exemptions of an express consent or a compelling public interest.  The GDPR for example has introduced a new requirement that data controllers must conduct Data Privacy Impact Assessment(DPIA) when processing is likely to result in a high risk to the rights and freedoms of Data Subjects.

The UK in response had to pass a Protection of Freedoms Acts 2012 with a section that specifically deals with biometrics and the appointment of a Biometric Commissioner. This Commissioner is independent of government and his duty amongst others is to have an independent oversight to review national security determinations of the use of biometrics. The point is Government can collect biometric when in the public interest but because it is sensitive data; there should be an independent check, review of the use, retention and destruction of biometrics by even the government.

The Dutch Data Protection Authority (DDPA) once imposed one of its highest fines on an organization that used biometric data of its employees for attendance and time registration. SIM card registration with Ghana card which already has our biometric captured cannot in anyway be a compelling public interest for a recapture of our biometrics. We need to be protected by the Data Protection Commission as an independent body.

For the national identification cards, yes, but biometrics is not ordinary personal data that must be collected at will for a service such as telecommunication. The Telcos or NCA cannot have the same information security systems that the National Identification Authority(NIA) is obliged and most likely to put in place. Our “Digital Persona” is at risk. 

DEFENDING THE LAW

There are legal implications in what in my opinion is an arbitrary use of power by the Executive arm of government in this mandatory registration of SIM cards in the name of wanting to protect the same citizens from possible fraud by a few unscrupulous people. What is the opinion of the following?:

·       Ghana Bar Association (GBA)

As an independent association of lawyers, do they agree on what is being done? What in their view is the position of the law? If it is an arbitrary infringement of the rights of the people, is it not possible for them to go to court to defend the rights of the people? If there is no abuse by the Executive too, is it not possible for them to make a statement on it to explain to the citizen that it is in our own interest and a legal requirement? Is it Association that can help and deepen the promotion of a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of the People?  May be as they say, lawyers defend their clients not the law so it is none of their business which is fine too. They have to be paid and no one has come to them. Understandable. What about Parliament and the Judiciary?

·       Parliament and the Judiciary

Parliament and the Judiciary are constitutionally, the two arms of Government for separation of powers, checks and balance. Is this mandatory registration of SIM cards not a typical situation for which the Constitution envisaged a possible arbitrary abuse of power by an arm of Government especially the Executive for which the powers were separated? I have heard of Parliamentarians saying there is no law under which the Executive is operating in this mandatory SIM registration. What are the Parliamentarians there for? What is Parliament then doing with their Constitutional power? Parliament, you make the laws, you say you have not made any such law and you lamenting to us the citizens. “SMH”

The Judiciary, you are the defender of the law, I doubt if any member of the Judiciary went to queue at a Telco office under COVID-19 health risk so will not feel the disrespect to the life of the citizens. Parliament or the Judiciary cannot lament like the ordinary citizen when they have the power to do something about it, unless they see nothing wrong with it.

·       Civil Society Organisations (CSO)

We have so many of them but the notable ones being IMANI, ASEPA and OCCUPYGHANA. I guess this should be a typical civil society situation that requires an intervention from them. I spoke to a member of one from these CSOs and the person said it will be a political case and should they go to court, they will lose. Why is this so?

·       The Media (FOURTH ESTATE)

They are supposed to be the “Fourth Estate of the Realm”, that is to act as a sort of watchdog of the Constitution. In its present situation, I have no comment.

·       The Citizens (FIFTH ESTATE)

I think we the ordinary citizens, ourselves, must form what I will call a “Fifth Estate of the Realm” and fight our own course since we are on our own from the way I see things. I have a few suggestions though on how we can have a “Both-Gain” situation with the Government, if they say they are protecting us, to do so without infringing on our fundamental human rights.

WAY FORWARD

·       Limiting Value Adding Services

Mobile technology comes with the capacity to deliver value adding services such a digital transaction accounts (MoMo). There is no “Right to a Digital Transaction Account” in the Constitution. MoMo is not “fundamental” but a Value Adding Service. These type of services are convenience services that can be limited subject to a SIM card being registered. The non-registered SIM holder will then have to buy paper based airtime to top up and cannot make online payments. The inconvenience will nudge consumers to undergo voluntary registration since they want to avail themselves to Value Adding Services above the basic “Right to Communication” as enshrined in the Constituency.

In effect, one cannot make payment on the digital platform if your SIM is not registered but this is a fair arrangement because there are alternative modes of payment. The analogy is this. If in the name of “Right to Freedom of Movement” under Article 21 (1) (g) of the 1992 Constitution, you want to drive a car on the streets get a driving license, else walk but one cannot be denied the “Right to Walk”.

Blocking SIM Cards is an interference and denial of the “Right to Communication and Correspondence” as well as “Freedom of Speech”. Limiting the registration to Value Adding Services will be in the spirit of sections 20 and 23 of the Data Protection Act by giving consumers the right to object or stop such processing.

·       Data Protect Commissioner to Stop the Re-Capture of the Biometrics

Data protection laws are, in general, an extension of the fundamental rights to communication and correspondence as long as the Telcos are data controllers by capturing our biometrics. They were introduced because of concerns about the impact of computerised data processing on privacy in the information society, right to respect for private and family life, home and correspondence.

The object of the Data Protection Commission (DPC) in Act 843 is to:

(a)      protect the privacy of the individual and personal data by regulating the processing of personal information, and

(b)      provide the process to obtain, hold, use or disclose personal information.

 

In my opinion, the recapture of the biometrics is not being obtained fairly in accordance with the rights of data subjects, there is no specific, explicit and legitimate purpose from the Telcos point of view since the Ghana card already has our biometrics. This makes the re-capture excessive and not necessary. If Government wants to still go ahead, the Data Protection Commissioner, if indeed independent, must go to court to stop the re-capture and order for the destruction of the already captured biometrics.

There is no compelling national interest for another biometric to be taken. The National Communication Authority is a State organization with its own functions and so is the Data Protection Commission(DPC). The capture and protection of our biometrics falls within the function of the DPC and they must be able to stop this re-capture. If they however think it is legal, then they should let us know.

CONCLUSION                                                                                                     

The Ghana card which already has our biometrics and personal data is being used as the only means of identification. This makes collecting biometric for a SIM registration superfluous, not necessary for the intended purpose and the data protection principles as in Act 843 does not sanction it. All it takes is to remotely link the SIM card to the Ghana card, no biometrics needed and no queuing necessary. COVID -19 is still on the rise just that the statistics are not being published for whatever reason.

The benefits in terms of unique identification to prevent fraud is unquestionable but so is the downside of abuse of the arbitrary re-capture of our biometrics by all the Telcos and other SIM card sales agents which may lead to permanent damage to our “digital persona” and our right to information security.

The blocking of unregistered SIM cards, is an unlawful interference, an arbitrary attack and deprivation on the right of correspondence, communication of the people by the Executive arm of Government and against the ICCPR, ACHPR and the 1992 Constitution. The queuing at the Telco offices under COVID-19 health risk is inhumane and a disrespect to the life of the ordinary Ghanaian. A blatant abuse to the “Right to Life”. Who is to defend the People? I guess nobody but ourselves the “Fifth Estate”.

Let us not block unregistered SIM cards except for managing the inherent risk in the provision of Value Adding Services like registering for MOMO, unless there is of course an undisclosed, hidden motive, because the present posture by the Minister for Communication and Digitization is a bit worrying. You know we do not all have the cards because another State institution responsible for issuing the cards has not been able to make it readily available. Why the rush?