During the July–August mass uprising in Bangladesh, there were widespread concerns among citizens that phone calls and Internet activity were being monitored by the government, raising fears of possible detention by law enforcement based on the information obtained. While spyware refers to malicious software designed to collect information about a person or organization and send it to another party, often violating the user’s privacy, lawful interception involves the authorized and legally approved monitoring of telecommunications services by agencies governmental. It is crucial to review the current legal framework for lawful wiretapping in Bangladesh and emphasize the urgent need for judicial oversight to ensure compliance with these standards.

Legal interception has become an important tool for law enforcement agencies and other government services around the world to investigate and prosecute criminal activities and terrorist operations. The concept of lawful interception was introduced in Bangladesh by the amendment of the Bangladesh Telecommunications Amendment Act 2001 to 2006. Section 97A of the newly introduced Act allows the government, in the interest of national security or the maintenance of law and order, to authorize law enforcement, intelligence or national security agencies to intercept, record or collect information from telecommunications service providers. Service providers are legally bound to comply with these orders. This provision overrides any conflicting provisions in other laws. In particular for the purposes of this section, the Government includes the Ministry of Home Affairs. Although our law allows lawful wiretapping and has also established a monitoring center, yet there is no discussion of mechanisms for judicial oversight of lawful wiretapping activities. Judicial intervention is crucial because the right to privacy is enshrined as a fundamental right under Article 43(b) of our Constitution. It was resumed in Aynunnahar Siddiqua and others. v Bangladesh (2016) that the right to privacy is an essential foundation of freedom of dissent. So this right cannot be undermined in the name of surveillance. The Supreme Court of India’s 2017 judgment in Justice KS Puttaswamy v Union of India further highlights that any interception must meet the criteria of legality, necessity and proportionality to avoid infringing on individual privacy rights.

In addition, there is real cause for concern about the deployment of such oversight mechanisms without any judicial oversight, as we have experienced many allegations of abuse of authority against members of our law enforcement agencies. Over the past 15 years, rights groups have listed scores of cases in which people have been charged with sedition for criticizing government activities on social media. Without legal safeguards, the establishment of such surveillance systems targeting suspected anti-state activities poses serious risks that innocent victims will be harassed.

Furthermore, under the comprehensive telecom licensing guidelines introduced by the Bangladesh Telecommunication Regulatory Commission (BTRC), surveillance is not limited to social media activity but extends to a wider range of telecommunications, allowing interception different forms of communication on several different platforms.

It is undeniable that lawful wiretapping is essential to national security, but when it fails the test of legality, necessity and proportionality, it raises serious concerns. In this scenario, it is recommended to establish a specific legal framework through which surveillance activities are subject to the mentioned principles. Currently, in practice, the Home Office holds the sole authority to issue lawful wiretapping orders. However, the legal framework does not clearly describe the process for issuing such orders, nor does it provide guidelines on related issues. It is essential to ensure judicial review when fundamental constitutional rights are at stake. To introduce accountability into the interception process, a review committee can be formed with representatives of senior judges in the judiciary, senior Home Office officials and law enforcement agencies. This committee would review interception orders, and if an order is deemed unjustified, it could order the destruction of intercepted materials. A clear timetable should also be established for the committee to review such orders to ensure timely oversight.

The writer is associated with the Legal Circle.