Illegal tracking devices in government establishments

Illegal tracking device is the monitoring of surveillance activities and stored on a hard drive for either covert or overt purposes by a body, a mandated institution or a person who does not in one way or the other, have the requisite authority to do so.

These covert activities are termed illegal if one does not have authorization from a competent court of jurisdiction or an independent government Agency for such purposes. Mostly, from the secret service, the police service department, the military or an equally mandated legal authority.

Tracking or surveillance allows ‘Note my words’ government and other security agencies to maintain social control, recognize and monitor security threats, to prevent and investigate criminal activities.

With the advent of technology, programs such as: the biometric software, Total information avenues, High Speed Surveillance Computers and finally but not the least, - Communication Assistance for Law Enforcement Act (In the case of U.S and other foreign countries), gives their Governments’ an enormous ability if not powers, to monitor the activities of their citizenry at all times.

However, many civil rights groups such as the ‘American Civil Liberties Union, Reporters without Borders, The Electronic Frontier Foundation have all among others, expressed grave concerns over the increase in such surveillance activities in our body politic.

 They are all of the view that, if this tracking surveillance is not checked, we shall one day wake up in a surveillance state where our human rights will become a thing of the past thereby raising issues on our socio-political rights. Or better still, we shall all wake up one day and “feel naked” like the former Minister of Lands and Natural Resources – Hon. Nii Osah Mills expressed his shock over the tracking device expose  in his predecessors official office.

In America for instance, The Communication Assistance for Law Enforcement Act was passed under President Clinton in October 25th, 1994 to enable law enforcement agencies to execute authorization surveillance or tracking. The law allows all broadband internet traffic, such as emails, web traffic, instant messaging, texting, sexting, phone calls and all voice over protocols` amongst many others be screened by Federal Law Enforcement agencies through real time monitoring.

These communication systems are intercepted, examined and analyzed through what is known as “Packet Capture Appliance”, repackaged or reassembled and routed back to its normal designation among many other forms of legal surveillance.

Not quite sure about how our systems work over here in Ghana. But the argument is that, are such tracking’s in the minister’s office and his colleague’s vehicle and any other public places or institutions yet to be bugged  backed by law as pertains in the states? The big answer is a big No! Therefore, what are the ramifications against these deviant political charlatans?

Any individual or group of persons found tracking former and current government appointees in their own personal capacities in itself, are not just illegal, but constitutes a criminal offence punishable by law. I believe our security agencies are up to the task?

There are other several means of tracking or surveillance such as corporate tracking, social networking, monitoring from a distance which is also known as ‘Tempest’:- Which involves reading electromagnetic emanations from computer devices in order to extract data from them at distances of about one hundred meters apart.

There is also tracking as an aid to censorship. There is ‘Policeware and Goveware’:- This is a surveillance system designed to police citizens by monitoring their interactions and discussions within the US. But these tracking or surveillance protocols are all backed by legal frameworks to give the authorities the leverage to perform these tasks. No individual has any exclusivity to plant tracking devices in any public place or building apart from his or her own bonafide property.

Last but not the least, and among many other forms of tracking or surveillance is ‘Malicious Software’. In addition to tracking, bloggers also use ‘Kyloggers’ which is a program normally stored on the local hard drive. It is programed basically to transmit data automatically over a network to a remote computer or web server to syphon information as seen in the case of the Minister of Lands and Natural Resources office, as well as the vehicle of the C.E.O of the National Youth Authority respectively.

There are several methods of installing such tracking devices. The most commonly used in our part of the world is the remote installing.

This form of device enables the user to create a backdoor enabled by a computer virus. This has the potential of subjecting several or multiple computers to surveillance, which is accessed over a network connection and allows the controller or in this case, the intruder to remotely execute commands in order to gain undue access through the security breaches that they are able to create for their nefarious activities.

There is also ‘cracking’ as a form of tracking or maintaining surveillance. This system allows an intruder to install surveillance software remotely to record all human activities be it audio or video against a particular person or persons such as what we currently find ourselves in.

Overview

Electronic tracking or surveillance is defined in federal law as the nonconsensual acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or electronic communication, under circumstances in which a party to the communication has a reasonable expectation of privacy. The "contents" of a communication consists of any information concerning the identity of the parties, or the existence, substance, purport, or meaning of the communication.

Examples of electronic tracking include:  wiretapping, bugging, videotaping; geolocation tracking such as via RFID, GPS, or cell-site data; data mining, social media mapping, and the monitoring of data and traffic on the Internet. Such surveillance tracks communications that falls into two general categories: wire and electronic communications. "Wire" communications involve the transfer of the contents from one point to another via a wire, cable, or similar device. Electronic communications refer to the transfer of information, data, sounds, or other contents via electronic means, such as email, VoIP, or uploading to the cloud.

 Classical Cases

In Kyllo v. U.S. (2001), the U.S Court addressed the constitutionality of using technology to survey the inside of a defendant's home without actually entering the home. Here, the Court held that, physical invasion was not required to constitute a Fourth Amendment search if the surveillance reaped information that would not have been attainable without entering the home.

Again, On June 5, 2017 a Court in U.S granted a petition for a writ of certiorari to review U.S. Court of Appeals for the Sixth Circuit case Carpenter v. U.S., concerning the use of an individual's cell-site records to map his location over a lengthy historic period. (Credits: NY Times, June 4, 2017 “U.S Supreme Court Agrees to Hear Cellphone Tracking Case”, by Adam Liptak ).

Reasonable Expectation of Privacy

Justice Harlan of U.S Supreme Court defines the privacy expectation in his concurrence in Katz, which is referenced in Kyllo, and states that a person must "have exhibited an actual (subjective) expectation of privacy and... that the expectation be one that society is prepared to recognize as 'reasonable.'" Thus, a person has a legitimate expectation of privacy if he honestly and genuinely believes the location under surveillance is private, and if a reasonable person in the same or similar circumstances would believe the location to be private as well. Therefore, the government has more latitude to legally survey communications in a public place than it does in a private place. 

This practically means that, one can only undertake tracking or any form of surveillance in his or her private capacity only at his or her private property! Except the government, who has the exclusive leverage to extend its legal frontiers of surveillance into people’s private homes for security purposes. Therefore, in what capacity did Honurable Inusah Fuseini and his Honurable brother from kumbugu :- Ras Mubarak undertake these tracking’s or surveillance? This raises serious security breaches on the part of both parties.

Warrant Requirement

Since electronic surveillance is a legal requirement under the laws of Ghana, it is subject to the same warrant requirements as search warrants across the globe.  To obtain a search warrant, one must show probable cause to believe a search is justified. Much in the same way, describe in particularity the conversation to be intercepted, and provide a specific time period for the surveillance, among other requirements before a device is implemented either in a minister’s office or in his colleague’s vehicle.

The issue in this instance is, did the self-acclaimed owners of the found devices in the ministry and Youth Authority have the requisite mandate or authority to do so?

As with other searches and seizures, exigent circumstances may serve as grounds for the government to forgo obtaining a warrant. If a situation threatens a person's life or the national security, or a conspiracy suggests the existence of organized crime, then the government may proceed without a warrant.

Domestic Tracking Legislation

In 1986, under President Ronald Wilson Reagan, The American Congress enacted extensive provisions regarding electronic surveillance or trackings in the Electronic Communications Privacy Act (ECPA). Courts have interpreted the Act to allow magistrates and federal judges to grant warrants to law enforcement officers to enter private homes in order to "bug" the home’s means of electronic communication. Despite numerous constitutional challenges, the courts have repeatedly upheld these provisions.

Why can’t Ghana learn from the American experience in order to forestall all these illegal interferences in high places of government and enact laws that will deal with such deviants?

The ECPA also provides a remedy for individuals victimized by unlawful electronic surveillance. If someone performs electronic tracking or surveillance in violation of the ECPA requirements, for instance like in the U.S, the victim may sue for compensatory damages, punitive damages, and equitable relief, if equitable relief can rectify the harm. However, the plaintiff may only sue the individual who performed the surveillance, not any third-party who subsequently receives a copy of the collected data.

External Tracking Legislation

Case law is split on the constitutionality of wiretapping a foreign national's devices to obtain foreign intelligence. However, courts agree that warrantless wiretapping for the purpose of domestic security is unconstitutional.

In 1978, again in the America, under Jimmy Carter, the United States Congress enacted the Foreign Intelligence Surveillance Act (FISA), which lowers the required evidentiary showing to obtain a surveillance warrant with regard to foreign intelligence gathering and describes other procedures for physical and electronic surveillance relating to foreign intelligence. Its provisions also apply to American citizens suspected of espionage.

In July of 2007, then President Bush signed into law the Protect America Act of 2007 (PAA), which amended FISA to loosen the warrant requirement by permitting wiretapping of any phone calls originating in or being received in a foreign country. The PAA expired after 180 days, at which time Congress declined to renew it. However, many provisions of the PAA were reauthorized in the FISA Amendments Act of 2008, and have been used as the legal basis for mass surveillance programs as disclosed by Edward Snowden in 2013 now in exile in Russia.

In conclusion therefore, it will be quit suicidal should the government turn a blind eye over these serious wire taping experiences. How many more ministers or governmental institutions are yet to fall prey to such criminal menace? The culprits in this very instance (Inusah Fuseini and his Colleague Mp :- Ras Mubarak), must be arrested, tried and prosecuted for their offences against the state,  in order to serve as deterrent to others. A second look at providing some kind of legislation to control some of these security protocols will be quite appropriate. A stich in time they say… saves nine!.

Written by: Stephen Stanley Quaye (Teshie).

Excerpts from: Scotusblog (US).