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SenegalCommunications surveillance in the Senegalese digital societyJONCTIONAbabacar Diopwww.jonctions.orgIntroductionSenegal, located in West Africa, is a country formerlycolonised by France which gained its independencein 1960. It currently has a population of roughly 13million people.The advent of the Senegalese digital societyin the late 1990s and its exponential developmentsince the 2000s has led policy makers to set up aninstitutional and legal framework for digital activitywith the adoption in 2008 of a series of laws governingthe internet in the country. 1 Policy makers foundthis necessary for reasons of national security, andto establish a legal and institutional framework toprotect citizens against crimes related to onlineactivity.ICTs have brought real changes in the forms ofcommunication and exchange, not only at the corporatelevel, but also in the relationships betweencitizens. However, even if it is proven that ICTs aregreat tools at the service of freedom of speech, theyalso constitute a real danger when it comes to theprivacy of correspondence.The Senegalese media continue to revealscandals about citizens’ communications beingmonitored either by the government or by privatecompanies. 2 This will be the subject of our discussion,which attempts to analyse the institutionaland legal architecture of communications surveillancein Senegal.Political contextSenegal has signed and acceded to several internationaland regional human rights instruments,including the Universal Declaration of HumanRights, the International Covenant on Civil andPolitical Rights, the International Covenant on1 www.jonctions.org/index.php?option=com_content&view=article&id=16&Itemid=622 Enquête+. (2013, July 29). Les enregistrements téléphoniquecomme moyens de preuves : ‘’Illégaux’’ et ‘’irrecevables’’, selondes juristes. Enquête+. www.enqueteplus.com/content/lesenregistrements-t%C3%A9l%C3%A9phoniques-comme-moyensde-preuves-ill%C3%A9gaux-et-irrecevables-selon-desEconomic, Social and Cultural Rights, and the AfricanCharter on Human and Peoples’ Rights.The Universal Declaration of Human Rightsstates in Article 12: “No one shall be subjected toarbitrary interference with his privacy, family, homeor correspondence, nor to attacks upon his honourand reputation. Everyone has the right to theprotection of the law against such interference orattacks.” The same UN text provides in Article 19:“Everyone has the right to freedom of opinion andexpression; this right includes freedom to holdopinions without interference and to seek, receiveand impart information and ideas through any mediaand regardless of frontiers.” 3In addition, Article 17 of the International Covenanton Civil and Political Rights states: “Noone shall be subjected to arbitrary or unlawfulinterference with his privacy, family, home or correspondence,nor to unlawful attacks on his honourand reputation.” 4In compliance with Senegal’s international commitments,its constitution states in Article 13: “Thesecrecy of correspondence and of postal, telegraphic,telephonic and electronic communications shallbe inviolable. This inviolability shall be subject onlyto such restrictions as are made applicable by law.” 5“Noticing echoes…”Senegal, like many countries in the world – as demonstratedby the revelations of Edward Snowden– is threatened by the practice of illegal surveillanceof communications. This practice, which doesnot meet international standards prescribed bythe relevant United Nations texts, including theUniversal Declaration of Human Rights and the InternationalCovenant on Civil and Political Rights, isa real threat to privacy, freedom of expression andthe right to confidentiality of communications.Revelations made by the Senegalese pressabout the tapping of citizens’ telephone conversations,but also the monitoring of communicationsof employees in a telecommunication company, illustratethis.3 www.un.org/en/documents/udhr/index.shtml#a124 www.ohchr.org/en/professionalinterest/pages/ccpr.aspx5 www.wipo.int/wipolex/en/details.jsp?id=6223According to an article in the newspaper LePays, published on 5 September 2011 and posted onthe OSIRIS website: “It is common: we often noticeechoes in the middle of a call, unusual noise, interruptedconversations without apparent reason andeven noise ... of mechanical tools. This implies thatwiretaps are being made. To pierce the mystery surroundingthe ongoing wiretapping that Senegaleseare subject to, there could be no more appropriatesource than a mobile phone company.” 6 Moreover,the same newspaper reports in its edition on 30November 2011: “Wiretaps were organised internallyby the top management and have practicallyturned the lives of the workers upside down, revealanonymous Tigo agents. Senior employees wereunpleasantly surprised to receive sanctions andother requests for explanations, based on the contentof messages sent by email.” 7If these claims are true, they show infringementson the communications of Senegalesecitizens by both the government and private companies.This constitutes a real threat to the enjoymentof fundamental human rights which our country hascommitted to respect.According to Article 13 of the Senegaleseconstitution, as noted above, the secrecy of correspondenceand communications is inviolable, andthis inviolability is “subject only to such restrictionsas are made applicable by law.”Even if there is no specific legislation on phonetapping, there are several laws and regulations protectingthe confidentiality of correspondence andother communications. These include Law 2008-12on the Protection of Personal Data, Law 2011-01 of24 February 2011 on the Telecommunications Code,and the decree on electronic communications madefor the purposes of Law 2008-08 of 25 January 2008on Electronic Transactions. 8According to Article 7 of the TelecommunicationsCode: “The operators of telecommunicationsnetworks open to the public and suppliers of publictelecommunications services, as well as their staffmembers, are sworn to secrecy of correspondence andcontinuity of the service under penalty of prosecutionpursuant to Article 167 of the Penal Code. They mustalso ensure that consumers and users have optimalnetwork conditions that guarantee confidentiality and6 Diagne, E. (2011, September 5). Surveillance des communicationstéléphoniques : Pourquoi et comment l’État écoute les citoyens.Osiris. osiris.sn/Surveillance-des-communications.html7 Seck, A. A. (2011, November 30). Tigo et le scandale des écoutetéléphoniques. Senenews.com. www.senenews.com/2011/11/30/tigo-et-le-scandale-des-ecoutes-telephoniques_17135.html8 www.jonctions.org/index.php?option=com_content&view=article&id=16&Itemid=62neutrality of the service with respect to transmittedmessages and the protection of privacy and personaldata... There can be no exception to this rule unlessunder the conditions prescribed by law.” 9Article 12 of the Telecommunications Code providesthat “[a] judge or police officer, for the needsof the prosecution or an investigation, or the enforcementof a judicial ruling, may require thattelecommunications operators and service providersor telecommunications networks make availableuseful information stored in the computer systemsthey administer. Telecommunications operators andservice providers of telecommunications networksare required to submit the required information to theauthorities.” 10 In other words, only a judge or policeofficer is authorised by law to order a restriction on theinviolability of private communications. This seems tobe, for us, consistent with the principle of legality aswell as that of the competent judicial authority providedby the 13 International Principles on the Applicationof Human Rights to Communications Surveillance. 11According to the principle of legality, “Any limitationto the right to privacy must be prescribed by law. TheState must not adopt or implement a measure that interfereswith the right to privacy in the absence of anexisting publicly available legislative act.”However, the law should be more precise to complywith the principle of adequacy, by specifying theextent and limits of an order by a judge or police officerunder Article 12 of the Telecommunications Code. Accordingto the principle of adequacy as established inthe abovementioned 13 International Principles, “Anyinstance of communications surveillance authorisedby law must be appropriate to fulfil the specific legitimateaim identified.” For us, it seems to be necessarythat the judge or police officer declare the legitimateaim pursued by the order, which has the advantage ofavoiding any abuse by the authorities.In light of this, there is no doubt that the incidentsreported above are unfairly and severelyviolating the integrity of the communications of citizens,because they do not have any legal grounds.Beyond that, they are a breach of citizens’ rights toprivacy and freedom of expression as enshrined inthe Senegalese legal system.It is undisputed that, for security requirements,the state may conduct surveillance of communications.But monitoring the communications orcorrespondence of citizens outside of legal channelsis an intrusive act against privacy and personaldata protection, and stands against human dignity.9 www.gouv.sn/IMG/pdf/code_des_Telecom_2011_senegal.pdf10 Ibid.11 https://en.necessaryandproportionate.org/text214 / Global Information Society Watch senegal / 215