3 rd APSN Conference, Hong Kong University State Power and Privacy : Rights Challenges behind Political Motivations Ahmed Swapan Mahmud Executive Director,

3rd APSN Conference, Hong Kong University

State Power and Privacy : Rights Challenges behind Political Motivations

Ahmed Swapan MahmudExecutive Director, VOICE, Dhaka, Bangladesh

Email: [email protected]; www.voicebd.org

3rd APSN Conference in Hong Kong University8-9 July 2013

State, Power and Privacy

Rights Challenged behind Political Motivations

If some one left alone in Hong Kong does his/her privacy matter?

Privacy originates from Private significantly with human communities .

Private vs Public debate [possessiveness e.g. private property. Individual vs public property> common and collective] is important to critically and politically understand social dichotomy

A society has classes, hierarchy, social divide and information rich and poor, which signifies the Power Relationship in the SOCIETY as a whole that combines State, Power and Citizens who want protect their right to privacy;

Privacy is neither a ManGo nor an AppLE…? It is…

A modern concept culturally constructed; emerged and developed in the economic rich countries in particular;

UNIQUENESS: With the corporate globalizations and technological interventions, it behaves same irrespective of class and race and religion, exploitation is same almost…

Collectively achieved individual value;

Does Privacy End in Itself ?

Social Trilogy

STATE MARKET

SOCIETY

Power Structure

Market• MARRAIAGE BETWEEN STATE and MARKET• No protectionism by the State and more aggression

by market

Society• Citizens are the step children• Power lack, weak and serve for the powerful

State • Disrespect to the human rights grossly, ally with market • Democracy deficit

When Power Makes Imbalances

. Does the State cares its citizens?• Does the State and citizens become rival?• How does the State function in neoliberal

globalized order?

. Does the market respect to human rights?• Does the market behave well and consistently?• What values does the market transmit to the

society?

. Is society a singular entity in free market economy ?• To what extent an individual belong to a society in

terms of ownership?• Does society care an individual?

Power relation : Business up, social decline, State defunct !

People

Rich

Bureaucracy

Political leadership

Corporations

Relationship among different entities works well?

State

SovereigntyLocation Constitut

ion,

State, Power and Politics

Judicial Legislative Executive

Laws, Policies

• Law makers• Constituencies• Bureaucracy• Citizens, no participation???

Policy makers

• State machineries• Intelligence agencies, police,

 elite force etc• Political/diplomatic back up /

motivations / incentives towards policy

State, Power and Privacy!

Location and sovereignty is in question in the technological age? Usual practice o f legitimization laws, policies

- creating ground - providing a sense of validity

- in guise of security and public interest Corporate Business - technology transfer takes place with the laws of the

country aligning with the politics and party -keeping each others interest - holding power Foreign policies-US domination  after 9/11 ground is created

State, Power and Politics?

Contextualization

Business

Foreign policies

Market liberalization and ICTs privatization Structural Adjustment Programmes (SAP) in

80s Information as capital accumulation;

commodity exchange…in globalized manner…systematic exploitation,

Washington Consensus; IFIs ( WB, IMF, ADB, AfDB etc,. WB’s

supports for ID cards, A2I, statistics and census etc,.

ALTERNATIVE> social class> declassed>

Who owns information?

Information commons…?

Does market give value to the citizens and communities?

When violations take place, what happens? Any impact on the life and in the society if

rights are disregarded? People live in poverty bother privacy? Can law protect? Who formulates laws? Privacy is not a developmental issue !? How we can make it significant to people? NO law is better than a bad law…

Issues…

Governmental policies that have shaped and structured technology consumption and bring forth their effects, impacts and changes on the society.

Since early 2007, the military backed government who was in power announced the Emergency Power Act that curtailed basic human rights of the citizens.

The intelligence agencies of the state were so active in surveillance that they are entitled to do ‘lawful interception’.

Phone interceptions, mobile phone data collection, blocked SIM cards, extra judiciary killings are some of the many undemocratic practices and political destabilization policies prevalent and challenging to many.

International: September 11th incited many governments, somewhat in an opportunistic manner, to go ahead and breach the rights of individuals in the name of ‘national security’

PART 2BANGLADESH : Political Sphere

The government’s objective in tapping mobiles phone and intercepting e-mails is to control criminal activities, or as the government puts it, to “control crime and ensure public order”.

The intelligence forces, out of “fidelity” for the government, believe that it is right to act according to the government purposes. It is how the amendment to the Telecommunications Act is often served to apply surveillance on the activities of the opposition political parties.

The intelligence agencies favour the government activities or other powerful groups. Mainly, the potentially powerful people are their main targets, such as militant groups, criminals, businessmen, media professionals, civil society groups, politicians, etc.

Motivations

The constitution of Bangladesh Does not categorically guarantee the right to privacy as a

fundamental right.

Article 43: ‘Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health; a. to be secured in his home against entry, search and seizure; b. to the privacy of his correspondence and other means of communication.

Individual privacy and liberty are two other fundamental concepts of democracy. Article 11 of the Bangladesh Constitution declares “The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed”

Several other provisions –articles 11, 31 and 32 –can constructively be interpreted to extend the ambit of the right to privacy. But the apex court of the country has not yet got any notable opportunity to offer such an interpretation.

Legal Regime of Privacy

The 2006 Act: criminalises several acts that are likely to violate the privacy of computer system. These include damage to computer or computer system (section 54), tampering with computer source code (section 55) and hacking with computer system (section 56).

The 2001 Act, section 30(1)(f): one of the responsibilities of the BTRC is to ‘ensure protection of the privacy of telecommunication’.

These laws also contain provisions that allow the infringement of this right in cases of ‘national security’ and ‘public order’.

Legal Regime

Section 97A, the 2001 Act: In the interests of national security and public

order -the government may empower any officer

belonging to intelligence services, national security agencies, investigating agencies or law enforcement forces -

to intercept, record or collect any data transmitted through telecommunication.

In 2008 the GOB established the National Monitoring Centre (NMC) for exercising these powers. It is made up of representatives from agencies like DGFI, NSI, SB, RAB, SSF etc.

Legal Provision to Infringe Right to Privacy

In January 2012, BTRC set up Bangladesh Computer Security Incident Response Team (BD-CSIRT)

Duties: To identify the sites, persons or institutions engaged in harmful activities against the state, society and political and religious beliefs using mobile phones, websites and different social networking sites;To take or recommend penal actions.

Institution mechanism to infringe right to privacy

The 2006 Act provides for the appointment of a controller who is empowered to direct any governmental agency to intercept any information transmitted through any computer resource, if he is satisfied that it is necessary or expedient to do so for several grounds including ‘national security’ and ‘public order’ (section 46).

ICT Act 2006 and Privacy Rights

The ICT Act, 2006 (Contd.)

Those issues include: Publication of False, obscene or defamatory

statements in electronic forms (Sec. 57); Violating order of the Controller in case of

emergencies (Sec. 60); Immunities of network provider (Sec. 79); Arrest in open place (Sec. 80); Issues relating to right to privacy (Sec. 30

and 63); Issue of universal jurisdiction (sec. 4).

Increased targeted communication surveillance in Bangladesh specially political surveillance.

The government has invested new surveillance mechanisms by means of mobile tapping. Phone companies are forced to buy tapping machines and accordingly the companies are engaged in the act of surveillance, providing data and information to the government.

ICT Skype controversy : It refers to the leaking of Skype conversations and emails between  Muhammed Nizamul Huq, head judge and chairman of Bangladesh Intrenational Crimes Tribunal (ICT), and Ahmed Ziauddin, a Bangladeshi lawyer based in  Brussels.]These conversations took place during the prosecution of the accused for alleged  war crimes during the  Bangladesh Liberation War  in 1971.

Targeted Communications Surveillance

Bangladesh lifted a ban on 5 June 2013 video-sharing site YouTube which has been blocked since September 2012 after an online anti-Islam movie spawned violent protests across the Muslim world.

Detective Branch (DB) of Police arrested three ‘bloggers’ in April 2013 for allegedly making inflammatory postings on the internet on sensitive religious issues.

Human rights defenders and media professionals were regularly monitored, threatened and intimidated by the personnel of the country's armed forces and various intelligence agencies.

CASES for exampleMass Communications Surveillance

The Bangladesh Telecommunication Act (2001) through an amendment (2006) has allowed intelligent agencies to tap mobile phones.

Intelligence agencies are allowed to breach the privacy of individuals by tapping telephone calls and surveying e-mails, therefore curtailing peoples right to privacy and freedom of expression.

The government has justified these changes on the grounds that it is necessary to protect national security and fight against terrorism.

Government formed a nine-member committee to track bloggers and other netizens who made comments deemed derogatory toward Islam, and on March 31, a list of 84 bloggers was submitted to the committee.

Mass Communications Surveillance

Hafizur Rahman Rana, a lecturer of Bangladesh University of Engineering and Technology (BUET) to 7-year rigorous imprisonment for issuing death threat to Prime Minister Sheikh Hasina by a posting on Facebook.

According to the newspapers, Hafizur said on Facebook: “Hey Hyena, you have destroyed the country, now you are trying to destroy our Buet… We the general students are the hunters. We will shoot in your head…and hang your head at the gate of Buet to avoid further aggression of hyenas.”

Earlier, the High Court gave six months imprisonment to a Jahangirnagar University teacher, Ruhul Amin Khondoker, on January 4, 2012, for making derogatory comments about the prime minister on Facebook.

Mass Communications Surveillance

Data theft: 40 years census raw data transferred to several influential countries.

An investigative committee formed under Statistics and Information Management Department as it is a matter of national interest. A report regarding this issue has been submitted to the Secretary of Statistics and Information Management Department on 31 March 2013.

However, since it is very sensitive issue, government is trying to keep it confidential at different level.

The National Board of Revenue (NBR) is being given access to the Election Commission's database on citizens so that it can crosscheck personal information of taxpayers and try

spotting possible incongruities.

Access to Communications/Raw Data

Recently, the Anti-Terrorism (amendment) Bill-2013 passed allowing the courts to accept the videos, still photographs and audio clips used in social medias like Facebook, Twitter, Skype and other social media.

The law indicated capital punishment as highest punishment for terrorism and subversive activities depending upon the extent of the crimes.

Bangladesh and USA are going to sign a MoU about anti-terrorism initiatives which includes information sharing and training between two countries.

Anti-terrorism Law and Cooperation

Undemocratic political behavior/ manipulation Regressive rule of law Autonomy to national security agencies, public

institutions, police over individual information. Fear begins at home level for surveillance Shrinking freedom of expression , civic space Intl pressure on security and anti-terrorism issue Hostile to civil society organizations and human

rights defenders Market over people, unethical interventions for

profit, liaison with the influential, state and policies etc etc,.

ARE THERE CHALLENGES?

More Challenges ahead…

THANK YOU