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The world is currently watching and waiting for the victory of one of two warring sides. It is a battle of privacy versus national security. The world is divided into two rival groups: one stands up for the personal privacy side (Apple), while the other takes the side of national security (FBI) as it is public interest and it is a worthy protection.
The story started when FBI asked for Apple’s help to breach the privacy settings of one of Apple’s customers. The FBI claims the device in question belonged to one of the terrorists indicted for the San Bernardino attacks last December.
Therefore, the FBI issued an order that Apple must build a tool to provide access to the terrorist’s data on his iPhone, but Apple has explicitly refused to build a backdoor into its secure operating system. At the time of writing this article, a pitched legal battle is running in the American courts, and no one knows if the court decision will be in favor of citizens’ privacy or national security. But what if instead this battle was between Apple and the Egyptian authorities? What would the outcome be in this case?
First of all, there would never be such a battle because Egyptian legislators prioritize national security regardless of any other cases or circumstances. This can be obvious in the case of the “emergency law,” which gives the Egyptian authority the ability to breach privacy and institute arbitrary surveillance. Article 57 of the Egyptian Constitution explicitly protects the privacy of communications: “The State shall protect citizens’ right to use all forms of public means of communications. Interrupting or disconnecting them, or depriving the citizens of using them, arbitrarily, is impermissible. This shall be regulated by Law.”
However, the Communications Law (Law 10 of 2003) regulates the communications industry in Egypt, including granting law enforcement agencies access to communications and communication infrastructure.
Article (5) of the National Telecom Regulatory Authority (NTRA) in order to achieve its objectives to precede all the procedures and actions necessary, in particularly the following: Developing plans, programs, rules, and management methods that are compatible with its activities in accordance with the provisions of this Law and its executive orders regardless of any compliance with any other regulations or governmental systems. So according to this article, it is legal for the NTRA to violate existing laws in order to achieve its objectives! Breaches of privacy are legal as long as they are done by the NTRA.
Fear of communication technology and information transfer has led to more administrative and legal restrictions on using information technology tools in most MENA region countries, where governments suffer from lack of technology knowledge and poor infrastructure, in addition to internal conflicts.
Article (19) All agencies and companies operating in the field of communications are committed to delivering reports, statistics or information relating to their activities if ordered, except the information related to national security. So in the case of Apple operating in Egypt is committed to decrypt the device.
Article (67) of the Communications Law stipulates that all telecommunications operators and providers shall be subject to the direct administration of competent authorities, and their employees to being summoned, during any circumstances relating to national security. Failure to respond to such summons incurs criminal penalties including imprisonment. National security is defined at the discretion of the authorities.
According to the provisions of Law 87 of 1960, referred to and any other cases of national security. Therefore, in the case of Apple operating in Egypt, it entails a commitment to decrypt the device. Moreover, if the operator or the provider neglects or refuses to submit to this order, the managing director would be subject to imprisonment, according to Article (82) of Law 10 of 2003.
Article (82) Anyone who violates the provisions stipulated in Article (67) shall be punished by confinement. The penalty shall be imprisonment if the crime was committed in wartime, etc. In all cases, the court shall temporarily suspend the license until the implementation of the issued order.”
Enlightened by what has been discussed, we now have a good understanding of the communications policy environment in Egypt.
Authorities in Egypt use “national security” to prevent opponents from expressing their objections freely. Precisely this happened when the NTRA decided to shut down Facebook’s Free Basics service. The true reasons were merely financial, as the proportion of Egyptians who pay to have access to the Internet just for the sake of Facebook is increasing, so if this population had free access, then they wouldn’t pay to have access to the Internet, which would cause serious losses for the Telecom Egypt company.
In terms of choosing the best policies to tackle the fundamental problems of privacy and national security, better provisions and acts of lawmaking will lead to a better future and a better environment for investment in the communications industry.
There is a need for the modification to some articles of Law 10 of 2003 to remove any intervention, tracing, or surveillance by the authorities (NTRA). This law is considered to infringe the Egyptian Constitution, which enshrines the privacy of communication, and as it is well known that no law can be at odds with the Constitution or this act of law will be struck down for its unconstitutionality.
Egyptian legislators must adjust to new definitions for Internet and communication actors, based on the international standards of digital rights and enlightened by principles advisable by Article 19. This new definition will make provisions of law clear and can help to prevent manipulation.
Ms. Doaa Shendy Internet Policy Analyst & Lawyer Stanley group, Egypt