COVID-19: Controversy trails Ministers’ decision to mine data of phone users without consent

THERE are growing concerns over the decision of the  Muhammadu Buhari government to mine Subscriber Identity Module (SIM) data of phone users in the country.  

Isa Pantami, the Minister of Communications and Digital Economy disclosed government’s plan to mine phone data in a viral video circulating across the social media platforms, in which he said that the poorest of the poor in the country were identified and offered supports through the SIM registration data mined by the ministry.

The Minister revealed this in a video interview with an unidentified person. The statement also aligns with the recent pronouncement by Sadiya Umar-Farouq, the Minister of Humanitarian Affairs and Disaster Management, who said beneficiaries of the social intervention scheme would be sourced through SIM records of phone users and the Biometric Verification Numbers (BVN).

Pantami had earlier explained in the footage that the SIM registration exercise and call card loading history would enable the ministry to identify the poverty level of those who should urgently benefit from the current social intervention programme.

These measures, he noted, would help the Federal Government reach out to the most vulnerable households and members of the community.

“We have supported our country in the area of social intervention…one of the ways we came up with this is using our SIM/ telecom registration where citizens have a database for registration. Through SIM registration of their mobile phones and SIM cards, we partake in data mining in order to identify their poverty level,” Pantami stated in the video.

“Through data mining, we have been discovering those that need urgent intervention in terms of feeding and other basic necessities of life.”

The minister further acknowledged the release of huge sums as a palliative by the federal government to the poor.

“We discover that with this new policy on lockdown in some states and restriction of movements, many people among our citizens find it difficult to get what to eat, so this government budgeted a huge amount of money in order to support them with whatever they need,” Pantami stated.

However, lawyers have contested the approach of accessing the biometric data, describing it as an invasion of privacy

Usually, phone subscribers in Nigeria are required by law to register their sim cards. During the registration process, they have to provide information such as name, occupation and home address including their biometrics, that is fingerprints and digital images.

These data, according to a report on a public enquiry on the SIM registration regulation, released in December 2010, however, restrict telecom operators from retaining biometric information of subscribers.

Except for the telecom operators internal use, the National Communications Commission (NCC) Registration of Telephone Subscribers Regulation (2011) recognises section 37 of the nation’s constitution which safeguards citizens’ privacy.

“The subscriber information contained in the central database shall be held on a strictly confidential basis and no person or entity shall be allowed access to any subscriber information on the central database except as provided in these Regulations,” Section 9 of the regulation states.

“Subscriber information shall not be released to a licensee, security agency or any other person, where such release of subscriber information would constitute a breach of the constitution or any other act of the national assembly, for the time being in force in Nigeria or where such release of subscriber information would constitute a threat to national security.

“Licensees shall not release personal information of a subscriber to any third party without obtaining the prior written consent of the subscriber.”

It is, however, uncertain if these data can be a true benchmark in determining a user’s economic status.

Besides, as far as the register of the poor in Nigeria is concerned, the National Cash Transfer Office (NCTO) had since 2018 adopted the World Bank Model through the National Social Safety-Nets Coordinating Office (NASSCO) where beneficiaries were sourced directly from the state level via engagements with local communities.

As of 12th April, the NCTO stated that 2.6 million vulnerable and poor households have been captured in the National Social Register (NSR) while 1,126,211 are currently benefitting from the Conditional Cash Transfer (CCT).

It would be recalled that President Buhari had over three weeks ago, announced a lock-down directive in Abuja, Lagos and Ogun States as part of efforts to prevent further spread of the virus in the states considered as the epicentres of the COVID-19 disease.

The president further extended the initial two weeks period by another 14 days on 13th April.

He announced the inclusion of an additional 1 million households as new beneficiaries of the scheme. With this figure, the benefitting households to be captured in the social register would increase to 3.6 million persons.

Strangely, however, the communications minister claimed his ministry was able to ascertain monthly top-ups of telecommunication subscribers to arrive at the monetary disbursement process.

“…government has been supporting many citizens today, sometimes on a weekly basis and distributing food items directly to their homes. And the best way we did it was identifying even sometimes, the amount they spend during top-ups. How much do they use to top-up their lines?”

According to him, the strategy was part of the most effective measures to reach poor households nationwide, emphasising that in a month, some subscribers might not spend beyond $1, and at most less than $2.

“So, with this, we are able to categorise their level and see what they need and how government can also support them. So this is one of the things we have done.”

Lawyers differ on mining of SIM registration data without consent

Abdul Mahmud, the Managing Counsel, Ephesis Lex Law Firm, described the data mining as a fundamental problem which he said was clearly illegal and against the Constitution.

According to him, Section 37 of the Constitution spells out the privacy protection of Nigerian citizens on telephone conversations, homes, telegraphic conversations, maintaining that the law guarantees and protect the rights of every citizen.

“…so if the minister of communication is saying they mined data, the question one should begin to ask is, does he have provisions of Section 37 in his mind? Two, did he bring to use the provision of the Constitution knowing fully well what he was doing was illegal,” he said.

Mahmud noted that though Section 37 which guarantees the Right to Privacy is not absolute, Section 45 of the Constitution provides ground on which the right to privacy could be derogated upon by the state.

However, such derogation, he stated, should be made pursuant to an Act of the National Assembly.

“But in exercising that power under Section 45, that exercise of the power must be consistent with an Act of the National Assembly. Did the minister exercise his power pursuant to any law? I do not think so…no one has that privilege of power to infringe on fundamental rights of individuals.

He emphasised that such decision by Pantami to mine public data sourced through the SIM registration was not backed by any law, adding that the recent regulation passed by the President in the wake of the COVID-19 pandemic does not empower the minister to do such.

The lawyer also contended that the National Communications Act 2003 does not permit the minister to mine public data, rather Pantami should have contacted the individuals to seek their consent.

Ayo Oluseye, another lawyer, shared a similar position. He said the action was illegal and unjustifiable, irrespective of the rationale.

As such, the lawyer tasked Pantami to make public the law relied upon to engage in the data mining exercise.

“Irrespective of whatever justification the minister is advancing, he does not make the wrong right. It is logically indefensible. So, it is clearly against the law,” Oluseye said.

“You can say he has caused an invasion of privacy. Like if my name was published to be among the poorest of the poor, I can say my privacy has been invaded. How did they come up with that?” he queried.

According to him, if he has more than two lines and decided not to credit the third line with call credit, despite his economic status, he would also be considered as poorest of the poor.

“Before they declare me poorest of the poor, they need to seek my consent.”

Moreover, Oluseye queried how the minister had access to those data as the NCC has a duty of non-disclosure to protect their subscribers’ interest.

“They (NCC) can only be compelled to do that once there is a court order but in the absence of that, it’s a nullity and a breach.”

Asked if the minister has the right to demand the data from NCC, he said Pantami was appointed but the NCC is a body established by law.

“He cannot solely get it done. But then, you know the Nigerian factor,” he added.

But Oyin Komolafe, another lawyer justified Pantami’s action based on the principle of overriding interest captured in Section 45 of the Constitution.

She said though the Nigerian Data Protection Regulation (NDPR) established by the National Information Technology Development Agency (NITDA) in 2019 protects public data, there are conditions that should be satisfied for the usage of such data.

The NDPR safeguards data privacy of all individuals in the country, prevents manipulation of personal data and ensures safe conduct of transactions involving exchange of personal data.

However, findings by The ICIR also revealed that before such data can be used there should be consent from the rightful owner.

“No data shall be obtained except the specific purpose of collection is made know to the data subject,” the NDPR stated.

“Data Controller is under obligation to ensure that consent of a Data Subject has been obtained without fraud, coercion or undue influence; accordingly: a) where processing is based on consent, the controller shall be able to demonstrate that the data subject has consented to processing of his or her personal data and the legal capacity to give consent….”

Komolafe, however, aligned her argument to Section 37 of the Constitution which discourages invasion of privacy.

She said as much as Section 37 protects and guarantees the privacy of citizens, and the Constitution supersedes every other law and that Section 45 also overshadows the earlier provision.

“What this means is that Article 2.2 of the NDPR is only re-echoing the provision of the Constitution but the Constitution does not stipulate any such conditions on obtaining consent from data subjects,” she said.

“All other laws derive their validity from it. Hence, if the constitution stipulates that the right to privacy can have a limitation, obtaining consent is not necessary.

“Especially, since the purpose is for disbursing funds which are of vital interest to the data subjects.”

Only NSA can access data on registered SIMs – NCC    

Henry Nkemadu, Director of Public Affairs, the National Communications Commission (NCC), while reacting to the story dismissed the right of the minister to access such biometric data of SIM card users.

He said only Office of the National Security Adviser (NSA) has the right to access the data.

“Does the minister have access to the data?” he queried. “The Minister is different from the NCC…the only person that can access the data is the NSA’s office.”

    He explained further that only telecom operators can make available information on call credits of phone users.

    Though, the NCC Act does not clearly spell out who should have access to the biometric data, the Act empowers the commission to design regulations it deems necessary for its operations and those who could access the data based on national security.

    The ICIR also attempted to contact Mrs. Uwa Sulieman, Special Adviser to the Minister of Communications and Digital Economy, but calls put to her line were unanswered.

    She did not also respond to the text message sent to her to verify claims made by the minister and the possible legal concerns.

    Olugbenga heads the Investigations Desk at The ICIR. Do you have a scoop? Shoot him an email at [email protected]. Twitter Handle: @OluAdanikin

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