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Debates over the interception of
communication have recently heated up. This is a result of intense
wiretapping practices conducted by law enforcement agencies in their effort
to uncover crimes, especially of the organized and transnational variety.
Discourses pushing for the harmonization of wiretapping-related regulations
have emerged ever since the Constitutional Court mandated in its judicial
review of the 2008 Information and Electronic Transaction Law that the
state should enforce a single and centralized rule on wiretapping.
However, wiretapping is undoubtedly an effective mechanism in a criminal
investigation. It is the preferred choice when investigators are dealing
with an extraordinary crime like corruption. Wiretapping is also a useful
instrument to prevent and detect crimes. In Indonesia, law enforcers tend
to resort to a wiretapping mechanism when looking for solid evidence.
Despite the “success” rate of wiretapping in unveiling crimes, the
mechanism tends to abuse several human rights, especially when tapping
practices are not well regulated or monitored and involve agencies that are
not on any leash.
Wiretapping by law enforcement agencies and other state bodies remains a
controversial matter, given its conflict with citizens’ rights to privacy.
The 1945 Indonesian Constitution specifically guarantees the protection of
citizens’ privacy rights. Article 28 G paragraph (1) says that everyone has
the right to the protection of his or her private life, family, honor,
dignity and property.
The protection of privacy rights also appears in several laws, including
Article 32 of Law No. 39/1999 on human rights. The state’s guarantee of
privacy rights strengthened after Indonesia ratified the 1976 International
Covenant on Civil and Political Rights (ICCPR) in 2005.
Indonesian laws also restrict the unlawful interception of communication as
stipulated in Article 40 of Law No. 36/1999 on telecommunication, which
says: “all persons are prohibited
from eavesdropping in any form whatsoever on information channeled through
telecommunication networks”.
However, these laws do not thoroughly regulate how to conduct wiretapping
and where to file complaints should law enforcement agencies violate the
rights of privacy, as they are not constructed in accordance with the
principles of human rights.
Wiretapping practices bring about good and bad results, but Indonesia is
far from offering up a holistic regulation on the matter. Worse,
regulations on wiretapping overlap each other.
Let us take a look at one of the major problems the country faces: There is
no single and integrated regulation on wiretapping practices. Procedures
and mechanisms on wiretapping are stipulated in several regulations, only
resulting in legal uncertainty. There are at least 12 laws, two government
regulations and two ministerial regulations that outline the practice of
wiretapping, in the name of law enforcement, by state institutions.
In Indonesia, wiretapping practices are conducted by numerous state
agencies for different purposes. The law on psychotropic drugs, for
instance, allows law enforcement agencies to conduct telephone wiretapping
and recordings based on a permit issued by the National Police chief. Law
No. 35/2009 on narcotics allows the National Narcotics Agency (BNN) to
intercept information with the District Court’s approval. In the event of
an emergency the BNN is allowed to wiretap people without the court’s
consent, but must subsequently report the wiretapping.
The Terrorism Law also gives a permit to police investigators to wiretap
and record conversations upon the court’s approval. Corruption Eradication
Commission (KPK) investigators are authorized to intercept communication
and record suspicious conversations only based on the approval of KPK
commissioners, without the court’s approval.
The 2011 State Intelligence Law allows the interception of communication
for intelligence purposes by the order of the National Intelligence Agency
(BIN) chief with the consent of the district court chief.
Those practices are hardly found in other countries. Commonly, the
authority to approve wiretapping requests lies only in one hand, either in
the executive, judiciary or in the investigating magistrate.
Indonesia does not have a single authorization on wiretapping and various
authorizations have created uncertain monitoring standards for agencies
conducting wiretapping practices.
This opens up the possibility of a conflict of interests among the agencies
concerned. At the same time, legal uncertainty also places citizens’
privacy rights in danger.
There are different time measurements on wiretapping. The Psychotropic
Drugs Law stipulates that the wiretapping permit is valid for 30 days. The
Narcotics Law allows wiretapping to be carried out within three months and
could be extended for another three months.
The Intelligence Law permits six months of wiretapping, which can be
extended if necessary. This unclear time span is prone to wrongdoing. The
Terrorism Law gives a time span of one year for wiretapping practices.
Meanwhile, the KPK Law places no time restrictions on wiretapping.
In the absence of a regulation on how to use wiretapped materials,
malpractices on wiretapping are potentially rampant. Ideally, a regulation
on wiretapped materials should contain; (1) access restrictions; (2)
procedures; (3) relevant wiretapped materials; (4) procedures on presenting
wiretapped materials as evidence; and (5) an obligation to destroy
wiretapped materials once they are no longer used in the investigation for
the sake of the protection of privacy rights.
As these regulations are far from ideal, wiretapped materials can be easily
accessed by anyone, including by unauthorized individuals. The materials
could also be widely broadcast through various media without tight restraints.
Indonesia has yet to provide a special complaint mechanism for wiretapping
practices that are conducted without objective control, legitimate
procedure and illegal authority. The absence of such a mechanism will also
give rise to human rights violations. ●
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