Article by Dr. (Candidate). Purna Cita Nugraha, S.H., M.H
“We can’t whisper anymore.” Those are might be just the right words to illustrate the incident of wiretapping which were allegedly committed by the United States and the United Kingdom against Indonesia at the G20 Summit in London four years ago.
The privacy of communication is at risk once again. There is no more “rights to be left alone”. Even by the attendance of a President in a world forum.
President Susilo Bambang Yudhoyono has yet to react to the incident, and there is still no official response from the government regarding the London spying.
The presidential spokesman, Teuku Faizasyah, said that wiretapping would contradict ethics when it came to good faith in international relations.
Such a point of view will only bring the United States and the United Kingdom into the international community’s valley of moral sanction — which somehow the two major powers would easily ignore.
Two questions that arise in connection with the incident are one, what kind of legal basis can be used to obtain clarification from the wiretapping actors? And two, is there any forum in which we can find settlement for the violation?
There are three forms of wiretapping: i) wiretapping act conducted on an oral communication, ii) on an electronic communication; and iii) by means of wire communication. In the past, wiretapping was totally banned. Later on, however, there was a growing interest among governments to use phone bugging to help law enforcement. At that time, wiretapping was tightly controlled under national laws designed to protect privacy rights.
In many governments the ability to wiretap is limited by law and jurisdiction. It also requires the enforcer of the law to secure a wiretap order or warrant from the court beforehand.
It is of the author’ opinion that wiretapping will never be legal if it was conducted outside the state’s jurisdiction and against leaders of other sovereign states. Corollary, the acts of interception allegedly perpetrated by the United States and the United Kingdom are in breach of international public law and the legal principle of “par in parem non habet imperium” (an equal has no power over an equal).
As a consequence of the equality of states in international law, one sovereign power cannot exercise jurisdiction over another sovereign power. This is a well-known basis governing acts of state doctrine and sovereign immunity ever since the Lotus Case in 1927.
Legally speaking, the International Telecommunication Union (ITU) might serve the place for a proper forum to raise the issue of the London eavesdropping case. According to the Final Acts of the Plenipotentiary Conference in Guadalajara in 2010, which were ratified by Indonesia through Presidential Decree No. 5/2012, the ITU plays a fundamental role in building confidence and security in the use of information and communications technologies (ICTs). This point, which is an integral part of the Final Acts, also entails the protection of personal data and privacy.
Unfortunately, The United States and the United Kingdom are happen to be amongst the two nations that have only signed the Final Acts.
So, as signatories to the agreement and members of the ITU, they bear a moral obligation to heed the Final Acts. Option by doing the opposite will drag them into greater trouble with the international legal community.
Apart from those arguments, there are at least four significant steps that the Indonesian government can take to respond to the issue.
First, the government can use its bully pulpit to cajole and threaten the ICT industry to develop technical rules and new technology. In the context of wiretapping, governments must encourage the industry to provide encryption technologies for official state use.
Second, the government should work with standardization bodies to develop a standard operating procedure for communications. The government can work with stakeholders from the industry and technology developers to define the standard.
Third, the government can encourage the development of particular technological capabilities, such as a wiretap-safe technology, using public funds and realized under public sector procurement.
Fourth, Indonesia must bring the eavesdropping incident before the ITU. This does not only concern Indonesia’s interests, but it must also be done for the sake of mutual international confidence and security in the use of ICTs.
Such a move would be in accordance with Indonesia’s reservation to the Final Acts, which appears as an appendix to Presidential Decree No. 5/2012, and states that Indonesia has the right to take any action and preservation measure it deems necessary to safeguard its national interests should any member in any way fail to comply with the provisions of the Final Acts.
It will be unfortunate if the Indonesian government does not stand up for its rights and do something about wiretapping.