The Urgency of Communication Interception Legal Reform to Strengthen the Protection of Privacy Rights

ELSAM, Jakarta –The intrusion toward the citizen’s privacy right has slightly increased concurrently with more innovative the usage of information and communication technology is. The society’s communication space is no longer being the free zone to exchange information and ideas, since it is vulnerable for the said communication and exchanging information to be intercepted.

The situation was worsened by the absence of single rule on communication interception, which can guarantee the legal certainty in citizen protection against the unlawful interception. The regulation specified in any rules and regulations based on sectors has caused the absence of legal certainty in its practice. In response to that, the Institute for Policy Research and Advocacy (ELSAM) works together with Privacy International to conduct a study to prepare the policy paper on communication interception.

As part of the study, ELSAM held a focused group discussion (FGD) on 19 December 2016 to discuss the road of the policy, whether it is related to the substance of policy content and the formal process which is able to conduct to promote the said policy. The discussion entitled Communication Interception Law Reform was attended by the representatives from law enforcement officers, CSOs, security officers, House of Representative supporting structure, and also related institutions.

The moment of this policy reform departed from the result of amendment of Law on Electronic Information and Transaction (UU ITE), newly enacted in November 2016, which affirmed that the regulation on communication interception should be enacted in a separate law. It again affirmed the ruling of Constitutional Court No.5/PUU-VIII/2010 which obliged to immediately establish a regulation related to the mechanism of communication interception. Constitutional Court stated even clearer the main material required to be regulated, namely, (i) authority to execute, order or demand the communication interception, (ii) specific purpose, (iii) legal subject category authorized to execute, (iv) the permission from the supervisor or judge before the execution, (v) mechanism of communication interception, (vi) monitoring, and (vii) unless otherwise specified the use of output.

In the context of communication interception aiming at law enforcement, Erasmus Napitupulu from ICJR mentioned that the regulation must firstly be clear about the categorization of the crime, the enforcement of which is enabled to utilize communication interception. This is mainly related to the reform of Law Procedural Code (KUHAP) within which will also regulate the authority of communication interception of law enforcement officers. “Principally, not all criminal can be forced to be intercepted. Therefore, there should be a gradation of seriousness to map the authority of the enforcement,” Erasmus said.

In relation with monitoring or accountability mechanism of the authority to communication interception, Natal Kristianto from Corruption Eradication Commission (KPK) mentioned that, specifically in his institution, there are a number of accountability process in the execution. He later added that though KPK do not regulate in detail the procedure and accountability of communication interception, the execution of the authority all this time is based on the supervisor’s order and referred to the internal SOP, which is audited annually by the Ministry of Communication and Informatics.

Meanwhile, related to the communication interception practices in terms of the function of state intelligence, though Law on State Intelligence has been quite detail in regulating the execution of the authority, in practice there are still a number of problems. Poltak Partogi Nainggolan from Research Center of House of Representative, the problem is mostly related to the accountability of the implementation, which until today was deemed as ineffective. It is particularly in terms of function of the Intelligence Supervisor Team, established in Commission 1 of House of Representative, which until today has not showed the effectiveness of its function to supervise the execution of state intelligence function, including communication interception function.

While seen as a process, related to the initiative for the discussion of Bill on Communication Interception, a number of parties proposed in order that House of Representative can be urged to use the initiative for the discussion of the Bill. The proposal was delivered by Yudha Kurniawan, Expert staff of Commission 1 of House of Representative, which affirmed that,” concerning the legion number of sectors related to the execution of authority of communication interception, starting from the intelligence agency which executed communication interception for the sake of national security, and also the law enforcement officers, it is correct if the proposal becomes the House initiative”.