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Is anybody else listening?

  • Published at 02:39 pm December 12th, 2019
Please be careful with your phones

What does the law say about recording and leaking phone conversations?

How does one justify the leaking of an audio clip of someone’s personal telephone conversation? The audio leak of Ducsu Vice President Nurul Haq Nur’s telephone conversation has brought up the question, yet again.

These clips have been surfacing through various media outlets and on social media, but no one reveals the source they have obtained the recording from.

There is only one law in Bangladesh that permits the recording of personal telephone conversations of individuals, and that is for the sake of national security. A handful of pre-determined government agencies have been tasked with this, but they are not permitted to release the recordings to the general public.

In Bangladesh, we have yet to find evidence of any detective agencies finding anything incriminating in someone’s telephone conversation that prompted them to file a case against them based on the recording. There have been some cases (like that of Mahmudur Rahman Manna), but there is no mention in any of them regarding which government agency recorded the conversation.

So who exactly records these conversations?

The Telecommunication Act 2001

In 2001, Bangladesh enacted the Telecommunication Act, which was amended in 2010 to include special provisions to ensure the state’s security. It suggests that, whatever other laws may say, when it comes to matters relating to the state’s security and maintaining public order, telephone conversations can be intercepted and recorded for a period of time. But it is to be done only by the detective agencies, national security agencies, and investigating agencies.

Nowhere in this law is it mentioned that the recording can be leaked to the general public.

It is clear that the abovementioned section of the Telecommunication Act is contradictory to what the Constitution states since it provides the secrecy of all kinds of personal communication, terming it as a citizen’s basic right. 

A rough translation of Article 43 suggests that it provides for the “privacy of his correspondence and other means of communication.” 

However, it is “subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality, or public health.”

The fact that the constitution is regarded as the basic law of the land and any contradicting laws cannot prevail within the country is mentioned in the charter itself.

What do the prevailing laws suggest?

According to the prevailing laws in Bangladesh, anyone without legal precedent can be punished if they are found to take photographs or gather information about any individual without their consent. Section 26 of the Digital Security Act 2018 allows for up to five years of imprisonment and or, fining the perpetrator up to Tk5 lakh.

Similarly, Section 63 of the ICT Act of 2006 also provides the security of personal information which also finds the publishing of information about correspondence as punishable by law. This proves that the recording and leaking of personal telephone conversations is a break of privacy and punishable by prevailing laws of the land.

Where is the remedy?

Those who are recording and leaking telephone conversations are committing two types of crimes: Breaching privacy of personal information by secretly recording telephone conversation; and releasing or leaking the recording in the media and social media, leading to the violation of privacy of an individual’s personal information.

But who is responsible for this crime? None of the investigative agencies in Bangladesh have gone on official record to claim they have recorded calls. In fact, none of the cases were filed based on audio recorded by them.

How is the media finding these recordings then? Are they the ones doing the recording? I assume that is not the case since they do not have the legal mandate to do so. Furthermore, I do not think they even have the technology necessary to do so. However, they are breaching an individual’s right to privacy of personal information by publishing and promoting it.

I believe those who publish these stories know who are recording. If anyone who has been angered enough goes to court to seek relief for the inconvenience, maybe these media outlets will reveal the source of these recordings and the parties who are giving them to the media.  

Whoever is recording these calls knows that such personal correspondences do not have elements that are incriminating. Yet, they choose to leak them to defame and put the individual under pressure. There has been quite a debate on the security and privacy of personal information in India, in recent times. However, a historic verdict by the Indian Supreme Court in 2017 termed a citizen’s right to privacy as a basic right.

The judgment said: “According to Section 21 of the Constitution of India, the right to privacy of personal information is similar to their right to life, becoming a citizen’s basic right. The case was filed to fight the provision of making “Aadhar cards” (Indian National ID) necessary to avail certain government services. There were allegations of privacy breach and sharing of personal information regarding the card. 

Harun-ur-Rashid is Executive Editor, Bangla Tribune. This article originally appeared in Bangla Tribune and has been translated from Bangla.

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