Telecommunications Privacy

TELECOMMUNICATIONS PRIVACY <!--[if gte mso 10]> TELECOMMUNICATIONS PRIVACY By Irfan Munawar Gill, Advocate, LLM (London)* Lahore * For feedback and suggestions, the author can be contacted at irfangill@hotmail.com Telecommunication industry has witnessed unprecedented growth and development during the last two decades around the world. Innovations and the use of new technologies has helped in achieving the maximum connectivity and has transformed this world into a global village. The convergence of different technologies and blurring of boundaries between different types of communication services such as voice over Internet protocol (VOIP) has created challenging task for the telecom regulators in regulating the telecom sector particularly in protecting the integrity of data and privacy rights of users of telecommunication services. Although technological innovations in the telecommunication sector has helped this world in multifarious ways and with the use of new technologies, voice along with data can be transferred from one location to another even across different jurisdictions within seconds and with much less costs and efforts as it used to be in the past. But at the same time, this increased penetration and dependence has also exposed the users of the telecommunication services to multiple dangers which can be in the form of unauthorized accesses such as recording and taping of calls without valid justifications and the dissemination of the personal and business data of the consumers without taking proper security measures to guarantee the integrity of that data. The telecommunication regulators have always have a crucial to play in this regard because they need to draw a fine line between the regulations on one hand and the growth of the market on the other hang. The telecommunication regulators around the world such as Office of Communication in United Kingdom and Federal Communication Commission in USA are endeavouring for such a balance regulatory environment which provides effective safeguards to the consumers of the telecommunication services and at the same time does not overburden the market participants with unnecessary regulatory and compliance requirements. Telecommunication Privacy is the concern of the today because of increased penetration and dependence on the telecommunication services for making every kind of communication ranging from personal communications to sensitive business communications. The jurisprudence of privacy has a fragmented history. Privacy, as a distinct legal concept, has its origins in an essay published in the Harvard Law Review in 1890. Some jurisdictions have a patchwork of sector specific privacy laws such as USA while others have specific privacy or data protection laws. In UK, regulations such as Privacy and Electronic Communication Regulations, 2003, Human Rights Act, 1998 and the Regulation of Investigatory Powers Act, 2000 and at EU level, data protection directive, privacy and electronic communication directive and European Convention on human rights protect the data Integrity and privacy rights of the users of telecommunication services. Article 5 of the privacy and electronic communication directive protects the confidentiality of the communications by specifically prohibiting the listening, taping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other than users without the consent of the users except when legally authorized to do so in accordance with the directive. It also provides safe and effective mechanism for ensuring the security of data processing, traffic data, and storage of data and the prohibition of unsolicited communications. Moreover, Article 8 of the European Convention on human rights provides that every one has the right to respect for his private and family life, his home and his correspondence and in Halford v. United Kingdom, the European Court of human rights rules that interception of telephone calls made on an internal telecommunications system operated by Merseyside police was an infringement of Article 8 of the European Convention on human rights. This wide and favourable interpretation of basic human rights of the citizens by the European Court of Human nights has not only put the users of telecommunication services in a comfortable position but has also fixed the liability of those who control and process consumer data. Telecommunication regime in Pakistan is, to a greater extent, influenced by the regulatory frameworks of EU and UK. The Pakistan Telecommunication (Re-organization) Act, 1996 along with several rules and regulations provides the regulatory environment for telecommunication services in Pakistan and the Pakistan Telecommunication Authority (PTA), regulator of telecommunication services in Pakistan, has been assigned a specific mandate which, amongst others, provides for the protection of interests of users of telecommunication services. Telecommunication Privacy is a serious issue in Pakistan. There are no effective safeguards for protection of integrity and security of consumer personal and business data and obnoxious calls and unsolicited communications has become a common feature. A final draft of Electronic Data Protection Act, 2005 is available on the website of Pakistan Software Export Board for the last couple of years but no sincere effort has been made from any concerned quarter for its approval and implementation. The Schedule 2 of General Licence Conditions provides that the licensees of telecommunication services shall prepare a Confidentiality Code in consultation with PTA, while until now, no initiative has been taken either from PTA or Licensees for drawing up a confidentiality code and even if any such code does exist, it is not accessible to consumers. Although PTA has realized in number of its own determinations that one of its duty is to protect the interests of users of telecommunication services but no concrete and practical steps have been taken in this regard. How the interests of the users of telecommunication services can be protected in the absence of any privacy laws or confidentiality code is a question can best be answered by PTA only? Although the role of PTA as a regulator has been remarkable in creating an effective competitive environment in telecommunication sector, still, much need to be done by it to protect the consumers from unauthorized accesses and unwanted communications otherwise it could create imbalances and distort the market shape and structure. There is an urgent need to realize the fact that the growth coupled with effective regulations that protects the consumers from unauthorized accesses and transgressions can only create a balanced environment in which telecommunication markets will flourish not to the detriment but to the benefit of users of telecommunication services.