PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE
THE ELECTRONIC AND POSTAL COMMUNICATION ACT
The Electronic and Postal Communication Act of 2010 (the EPOCA) does not specifically make provision for the interception of customer communications. However, the existence of intercept powers can be implied from Section 120 of the EPOCA which states that no person without lawful authority under the EPOCA or any other written law can intercept, attempt to intercept or procure any other person to intercept or attempt to
intercept any communications. An application must be made under ‘any other law’ to the director of public prosecution (the DPP) for authorisation to intercept or listen to any customer communication transmitted or received. Only public officers or an officer appointed by the Telecommunications Regulatory Authority (the TCRA) and authorised by the Ministry of Science and Technology and the Ministry of Home Affairs may be permitted to intercept such communications.
Section 120 of the EPOCA provides that any person who, without lawful authority under the EPOCA or any other written law:
a. intercepts, attempts to intercept or procures any other person to intercept or attempt to intercept any communications;
b. discloses, or attempts to disclose to any other person the contents of any communications, knowingly or having reason to believe that the information was obtained through the interception of any communications in contravention of this Section; or
c. uses or attempts to use the contents of any communications, knowingly or having reason to believe that the information was obtained through the interception of any communications in contravention of this Section.
This Section therefore implies that any person with lawful authority may intercept customer communications.
TANZANIA INTELLIGENCE AND SECURITY SERVICE ACT
The Tanzania Intelligence and Security Service Act Cap 406 R.E. 2002 (the TISSA) states that the Tanzania Intelligence and Security Service (the Service) has a duty to collect by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain, information and intelligence in respect of activities that may on reasonable grounds be suspected of constituting a threat to the security of Tanzania or any part of it. Section 15 of the TISSA further states that the Service has the power to investigate any person or body of persons whom it considers, or which it has reasonable cause to consider, a risk or source of a risk of a threat to state security. The Service may conduct any investigations which are required to provide security assessments.
Section 10 of the TISSA allows the Director- General of the Service the command, control, direction, superintendence and management of the Service and all matters connected with it. However, all orders and instructions to the Service issued by the Director-General are subject to any orders issued by the President of the United Republic of Tanzania, unless the minister responsible for intelligence and security directs otherwise in writing.
PREVENTION OF TERRORISM ACT
According to Section 31 of the Prevention of Terrorism Act of 2002 (the PTA), subject to obtaining prior written consent from the Attorney-General, a police officer may make an application, ex parte, to the court for an interception of communications order to obtain evidence of the committing of an offence of terrorism under the PTA. The court to which an application is made may make an order:
a. requiring a communications service provider to intercept and retain a specified communication or communications of a specified description received or transmitted, or about to be received or transmitted by that communications service provider; and
b. authorising the police officer to enter any premises and to install on those premises any device for the interception and retention of a specified communication of a specified description, and to remove and retain such device.
This can only be done if the court is satisfied that the written consent of the Attorney- General has been obtained and that there are reasonable grounds to believe that material information relating to a terrorism offence or the whereabouts of a person suspected by a police officer to have committed an offence is contained in a certain communication or communications.
CRIMINAL PROCEDURE ACT
Section 10 of the Criminal Procedure Act Cap 20 R.E. 2002 (the CPA) provides or grants the powers to police officers to investigate the facts and circumstances of a case where they have reason to suspect the committing of an offence. Further, section 10(2) of the CPA specifically gives the police officers powers, by order in writing, to require any person (natural or legal) who from information given in any other way appears to be acquainted with the circumstances of a case, or who is in possession of a document or anything else relevant to the investigation of a case, to attend or to produce the document or other item.
DISCLOSURE OF COMMUNICATIONS DATA
THE ELECTRONIC AND POSTAL COMMUNICATIONS ACT
Section 91 of the EPOCA allows that a database be kept with the TCRA in which all subscriber information will be stored. Every application services licensee must submit a monthly list to the TCRA containing its subscribers’ information.
Regulation 4(2)(b) of the Electronic and Postal Communication (Telecommunications Traf c Monitoring System) Regulations of 2013 (the TTMS Regulations) allows the TCRA to acquire, install, operate and maintain traf c monitoring and measurement devices at the operator’s premises. Moreover, Regulation 8 of the TTMS
Regulations allows, inter alia, the traf c monitoring system to collect call detail records without intercepting any of the contents of communications such as voice or SMS. Call detail records have been de ned as information generated by telephone exchanges which contains details of calls originating from, terminating at or passing through the exchange.
In addition, Regulation 13(4) of the TTMS Regulations states that the TCRA must ensure that call detail records data are collected exclusively to monitor compliance with the TTMS Regulations; they must be encrypted and stored with the last three digits of the calling numbers hashed in order to protect con dentiality; and call detail records collected are not to be transmitted or given to third parties, public or private, except as permitted by law.
The EPOCA provides that information may only be disclosed by an authorised person where it is required by any law enforcement agency, court of law or other lawfully constituted tribunal authority with respect to subscriber information.
However, according to the Electronic and Postal Communications (Licensing) Regulations of 2011 (the Licensing Regulations), a licensee may collect and maintain information on individual consumers where it is reasonably required for its business purposes. It further provides that the collection and maintenance of information on individual consumers must be:
a. fairly and lawfully collected and processed;
b. processed for identified purposes;
d. processed in accordance with the consumer’s other rights;
e. protected against improper or accidental disclosure; and
f. not transferred to any party except as permitted by any terms and conditions agreed with the consumer, as permitted or approved by the Authority, or as permitted or required by other applicable laws or regulations.
Under Section 99 of the EPOCA, a person will not disclose any information received or obtained in exercising powers or performing duties in terms of the EPOCA except where the information is required by any law enforcement agency, court of law or other lawfully constituted tribunal.
Notwithstanding this, any authorised person who executes a directive or assists with its execution and obtains knowledge or information of any communication may:
i. disclose such information to another law officer to the extent that it is necessary for the proper performance of the official duties of either of them; or
ii. use such information to the extent that it is necessary for the proper performance of official duties.
NATIONAL SECURITY AND EMERGENCY POWERS
THE NATIONAL SECURITY ACT
The National Security Act Cap 47 R.E. 2002 (the NSA), which makes provisions relating to state security, states in Section 15 that where the DPP is satis ed that there are reasonable grounds for suspecting that an offence under the NSA has been or is about to be committed, and that some person may be able to provide information about it, he or she may, by writing under his or her hand, authorise a named of cer to require that person to give a police of cer any information he or she has relating to the suspected or anticipated offence.
TANZANIA INTELLIGENCE AND SECURITY SERVICE ACT
Section 5 of the TISSA gives authority to the Service to obtain, correlate and evaluate intelligence relevant to security, and to communicate any such intelligence to the minister and to persons whom, and in the manner which, the Director-General considers it to be in the interests of security. In doing so, the Service will cooperate as far as practicable and necessary with other state organisations and public authorities within or outside Tanzania that are capable of assisting the Service in the performance of its functions.
CONSTITUTION OF UNITED REPUBLIC OF TANZANIA
The Constitution of the United Republic of Tanzania of 1977 as amended from time to time (the Constitution) provides Parliament with the power to enact and enable measures to be taken during a state of emergency or in normal times in relation to persons who are believed to engage in activities which endanger or prejudice the security of the nation.
Article 31 of the Constitution provides that any law enacted by Parliament will not be void for the reason only that it enables measures that derogate from the right to life to be taken during a state of emergency or in normal times in relation to persons who are believed to engage in activities which endanger or prejudice the security of the nation.
OVERSIGHT OF THE USE OF THESE POWERS
Other than as outlined above, there is no judicial oversight of these powers. However, Section 114 of the EPOCA states that the TCRA may take enforcement measures against any person who contravenes the licence conditions, regulations and provisions of the EPOCA.
CENSORSHIP RELATED POWERS
SHUT-DOWN OF NETWORK AND SERVICES
ELECTRONIC AND POSTAL COMMUNICATIONS (LICENSING) REGULATIONS 2011
Regulation 36 of the Electronic and Postal Communications (Licensing) Regulations of 2011 empowers the Tanzania Telecommunications Regulatory Authority (TCRA) to cancel or revoke the licence of a telecommunications provider (such as Vodacom) where the terms and conditions of that licence have been breached. The TCRA must issue a written notice to the licensee 30 days prior to the revocation of the licence. Were the TCRA to revoke Vodacom’s licence, Vodacom would not be able to provide any telecommunications services and, in effect, its network would shut down.
BLOCKING OF URLS & IP ADDRESSES
TANZANIA COMMUNICATIONS REGULATORY AUTHORITY ACT 2003
The TCRA may, in fulfilling its functions, require a network provider (such as Vodacom) to block certain websites if they contain obscene material (the term ‘obscene material’ is not de ned in the Act). The TCRA may do so by issuing a compliance order on the network provider concerned according to Section 45 of the Tanzania Communications Regulatory Authority Act of 2003. A compliance order is enforceable as an order of the High Court.
POWER TO TAKE CONTROL OF VODACOM’S NETWORK
ELECTRONIC AND POSTAL COMMUNICATION ACT 2010
The police or the TCRA have the power to take control of Vodacom’s network but only in the limited circumstances set out in Section 163 of the Electronic and Postal Communication Act of 2010. Under Section 163, a police officer or employee authorised by the TCRA may seize network equipment where he or she has reasonable grounds to believe that the electronic communication system supported by that equipment contravenes the terms of the licence issued to it by the TCRA or is otherwise in breach of the 2010 Act (or any regulations made under the Act). If no prosecution follows a seizure, the network equipment can be re-claimed within two months of the date of seizure or it is deemed forfeited.
OVERSIGHT OF THE USE OF POWERS
ELECTRONIC AND POSTAL COMMUNICATIONS (LICENSING) REGULATIONS OF 2011
There is no judicial review of the TCRA’s use of its powers under Regulation 36 of the Electronic and Postal Communications (Licensing) Regulations of 2011.
TANZANIA COMMUNICATIONS REGULATORY AUTHORITY ACT OF 2003
There is no judicial review of the TCRA’s use of its powers according to Section 45 of the Tanzania Communications Regulatory Authority Act of 2003.
ELECTRONIC AND POSTAL COMMUNICATION ACT OF 2010
Where a network provider’s equipment is seized according to Section 163 of the Electronic and Postal Communication Act of 2010, it is possible for that network provider to seek the release of its equipment. When the network provider applies to the TCRA, the matter is referred to the Resident Magistrate’s court or a district court by the TCRA who preside on the TCRA or police officer’s action and decide whether the network equipment should be forfeited or released.
This information was originally published in the Legal Annexe to the Vodafone Group Law Enforcement Disclosure Report in June of 2014, which was updated in May of 2017.