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fundamental reason for the tight regulation of thesector.Communication surveillance in The GambiaDuring May 2006, the government obtained thenames, addresses, phone numbers and emailaddresses of all subscribers of a very popularcontroversial online news site. 7 The governmentdescribed the Freedom Newspaper subscribers as“informers”, and went on the rampage to arrestand detain them. Several people, most of themjournalists, human rights activists and politicians,were arrested and detained for weeks, but releasedwithout any court charges. Reports emerged laterthat the person who hacked into the Freedom Newspapersite was a British Telecom client using the IPaddress of an internet user based in the UK city ofSouthampton. The hacker erased all of the paper’scontent and replaced the welcome page with a messagepurportedly signed by Pa Nderry M’bai, thepublisher and editor. The message said: “I have decidedto stop producing the Freedom Newspaper asI have pledged an allegiance with my brother EbouJallow to join the APRC election campaign.” A formerarmy captain, Jallow used to be the spokesmanfor President Jammeh’s military junta. The APRC isthe president’s party, the Alliance for Patriotic Reorientationand Construction.M’bai is a self-exiled Gambian journalist. 8 Helaunched the Freedom Newspaper in early 2006. Itis very critical of Jammeh and his government. M’baiused to work for the then tri-weekly newspaper, ThePoint (now a daily paper), co-founded by slain Gambianjournalist Deyda Hydara.The fake message added: “This is a list of thepeople that were supplying me with information.” Itwas followed by the names and details of all thosewho had set up user accounts for the site. With helpfrom the US company that hosts the site, and fromReporters Without Borders, M’bai managed to regaincontrol of the site.Following the hacking, on 24 May 2006, underthe headline “Freedom Newspaper informersexposed”, the pro-government Daily Observer newspaperpublished M’bai’s photo on its front page,describing his paper as “subversive”.This was met with an outcry from activists. “Thiscase of hacking is serious and revolting,” a statementreleased by Reporters Without Borders said,7 The Daily Observer. (2006, May 24). Gambia: Freedom NewspaperInformers Exposed. AllAfrica. allafrica.com/stories/200605250666.html8 Reporters Without Borders. (2006, May 30). Online newspaperhacked, editor smeared and subscribers threatened. ReportersWithout Borders. archives.rsf.org/article.php3?id_article=17842adding that the climate in which Gambian journalistswork is totally poisonous.“Not only was the reputation of a journalist besmirchedbut a large number of internet users havebeen put in danger. And it is absolutely astoundingthat the Daily Observer became an accomplice bypublishing the list of these so-called informers anddescribing them as ‘subversive’,” it further noted.Since this incident in 2006, the government hasworked tirelessly to help tighten its control over thetelecommunications sector as it grows. The servicesof experts, analysts and consultants from farand wide were contracted with a view to produce a“legal and regulatory framework” that keeps a firmgrip on this emerging sector. The government’s effortshave since yielded dividends, and a numberof policies and programmes were introduced witha view to enhance growth in the sector. The mostimportant in our context among the “innovations ofthe government” was the enactment of the Informationand Communications Act 2009. 9The Information and Communications Act (ICA)2009 was adopted with a view to addressing theconvergence of the telecommunications, broadcastingand information technology sectors, includingthe internet. It is important to note key contents ofthe law. The ICA has 252 provisions and is dividedinto five chapters: preliminary matters; the regulationof information and communication systemsand services; information society issues; regulatoryprovisions for broadcasting content; and miscellaneousmatters. In addition to telecommunicationsand broadcasting regulation, the Act also effectivelydeals with cyber crime and the processing of personaldata.The ICA places the regulation of the telecommunicationsand broadcasting sectors under PURA.A detailed analysis of the ICA and other medialaws in The Gambia by Article 19, an independentinternational NGO focusing on freedom of expressionand media issues, illustrates deep flaws in thelegal framework. Article 19 noted at the outset thatentrusting the same entity with the regulation ofsectors as widely different as water and electricityservices and the telecommunications sector is confusingand undesirable. It therefore recommendedthe creation of a separate public authority withpowers to regulate the telecommunications andbroadcasting sectors.Article 19 highlighted as its main concern thatthe ultimate authority in respect of telecommunicationsand broadcasting licensing is the minister (i.e.the executive). It pointed to problematic clauses9 www.wipo.int/wipolex/en/details.jsp?id=10478in sections 7(2), 22, 23, 27, 215, 226, 230 and 232to 236 in this regard. Section 230(1), for example,provides that “the Minister, on the advice of theAuthority, shall issue broadcasting licences in sufficientnumbers to meet the public demand forbroadcasting services.”Similarly, sections 232 to 236 provide that uponrecommendation by the Authority, the Minister“may” renew, revoke or suspend a broadcasting licence.PURA therefore merely has an advisory role,while the ultimate decision-making power restswith the minister. This, however, contradicts internationalstandards on freedom of expression, whichrequire that all public bodies exercising powers inthe areas of broadcast and/or telecommunicationsregulation be institutionally independent so as toprotect them from undue political or commercialinterference.But what is more serious in our case is Section138 of the ICA, which gives sweeping powersto the national security agencies and investigatingauthorities to monitor, intercept and store communicationsin unspecified circumstances. The sectionfurther provides that the minister may require informationand communication service providers to“implement the capability to allow authorised interceptionof communications.”While Section 138 essentially raises issues ofprivacy of communications, and the protection ofprivate life more generally, it has serious implicationsfor communications. It seems to legitimisegeneral public concerns over the privacy of their“private” communication. This raises more seriousissues of surveillance in a country that is alreadynotorious for violations of basic human rights. Andindeed, even in places such as The Gambia whereinternet penetration is more limited than in moredeveloped countries, particularly in the West, theability of individuals to freely communicate on theinternet, using email, social media networks orother web platforms, has become an essential aspectof our daily lives. There are four times morepeople on the internet 10 in The Gambia today thanthe population of the capital city of Banjul. 11 In thiscontext, unchecked internet surveillance or “monitoring”but also the monitoring of communicationin general is perhaps one of the greatest dangers toprivacy both online and offline.Privacy activists and other rights defenders willtherefore argue that any restriction on freedoms10 Trading Economics, Internet users in Gambia (2011). www.tradingeconomics.com/gambia/internet-users-wb-data.html11 Access Gambia, Population Figures for Gambia. www.accessgambia.com/information/population.htmlmust be strictly measured against the three-parttest laid down under international law. Those limitationsmust be clearly defined by law, pursue alegitimate aim and be proportionate to the aim pursued.The interception of private communications inparticular should be limited only to the investigationof serious criminal activity.One can safely argue that despite the need toinvestigate serious crimes, there is an obvious dangerthat such unchecked and open powers given toa powerful arm of government (the executive) canbe easily abused unless clearly constrained by law.We can conclude that the provisions of the ICA ingeneral and this section in particular substantiallyfail to meet the requirements of international law asindicated above.For Article 19, given the breach of the requirementof legal certainty, it is impossible to predictunder Section 138 in which circumstances theauthorities may intercept or monitor communications.12 The only exception to this is perhapsSub-section 2, which bizarrely provides that a useror subscriber fearing for his life or physical integritymay authorise such interception, rather than a judicialauthority. This is also a very extreme situation,and unwarranted.It is clear that Section 138 does not providefor monitoring or interception to be authorisedonly by a judge nor that it should at all times be incompliance with the requirements of necessity orproportionality. Against this background, the factthat information and communication service providersmay be required by the minister to “implementthe capability to allow authorised interception” isnot just less than ideal, but detrimental to the freeflow of communications and privacy.On 3 July 2013, the National Assembly amendedthe ICA, stipulating a 15-year jail term or a fine ofthree million Gambian Dalasi (GMD) (approximatelyUSD 75,000), or both a fine and imprisonment, forthe offence of spreading “false news” against thegovernment or its public officials on the internet. 13While the amendment imposes penalties for “instigatingviolence against the government or publicofficials,” it also targets individuals who “caricatureor make derogatory statements against officials” or12 Article 19. (2012). The Gambia: Analysis of Selected Laws on Media– Overview. www.article19.org/resources.php/resource/3043/en/the-gambia:-analysis-of-selected-laws-on-media13 Article 19. (2013, July 10). The Gambia: New internet law furthersgovernment crackdown on free expression. Article 19. www.article19.org/resources.php/resource/37152/en/the-gambia:--new-internet-law-furthers-government-crackdown-on-freeexpression#sthash.qisIlU1J.dpuf130 / Global Information Society Watch gambia / 131