Lawful Interception Of Communications Under The Nigeria Communications Act And The Peculiarities Of The NITDA Draft Code Of Practice For Interactive Computer Platform/Internet Intermediaries
The Nigerian Communications Act 2003("NCC Act")1 regulates communications in Nigeria. Its regulatory purview includes all forms of telecommunications and internet-based communications. The Nigerian Communications Commission2 ("NCC"), established under the NC Act, is charged with responsibility for regulation of the communications sector in Nigeria. Pursuant to its powers, the Lawful Interception of Communications Regulations of 20193 (the "Regulations") were enacted for the purpose of providing the legal and regulatory framework for the lawful interception of communications, collection, and disclosure of intercepted communications in Nigeria. The procedure established by the Regulations, which will be discussed later in this article is clear and unambiguous.
On the 13th of June 2022, the National Information Technology Development Agency (NITDA)4 released a draft Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries and Conditions for Operating in Nigeria5 (the "Draft Code"). The objective of the Draft Code is to create a framework for the planning, development, standardization, coordination, monitoring, evaluation and regulation of information technology practices, activities, and systems in Nigeria. The Draft Code, which is currently undergoing consultations by various stakeholders, sets out what it is expects will be industry best practices for a safer digital ecosystem in Nigeria.
A key provision of the Draft Code is for Interactive Computer Platforms, Internet Intermediaries and Large Services Platforms, (collectively referred to as "Platforms") to provide information under its domain or any assistance to any authorized government agencies regarding content put on a Platform, for the purpose of carrying out an investigation, combating cybercrimes, or prosecuting an offence.6 This includes the disclosure of the identity of the creator of such information7. Towards implementation and compliance, NITDA has proposed a co-regulatory approach in the Draft Code by including the NCC as an "Authorized Government Agency". The Draft also lists the NC Act as part of the legislations to be considered in this co-regulatory approach. Other agencies included in the Draft Code include NITDA and the National Broadcasting Commission.
The Draft Code requires all Platforms to act expeditiously upon receiving a Court order directing a Platform to provide any information under its domain or any assistance to any Authorized Government Agency. While the position under the Regulations is mandatory for licensees under the NC Act, the Draft Code appears to create an obligation to disclose information on Platforms who may not be creators of content. Due to the ambiguity and the broad requirement of the Draft Code, there is therefore the potential for abuse and a mischievous interpretation.
This article aims to explore the potential areas of conflict between the Regulations and the Draft Code, as well as to highlight the likelihood of abuse of the Draft Code.
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