Surveillance and Privacy in Indonesia

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2 Surveillance and Privacy in Indonesia

3 Table of Contents Preface I. Introduction... 1 II. Enabling Statutes and Authorization... 6 III. Cases in Indonesia A. Constitutional Court Judgment No. 006/PUU-I/2003, Judicial Review on Law No.30 of 2002 concerning Commission on Eradication Corruption (KPK) B. Constitutional Court Judgment No. 5/PUU-VIII/2010 Law No.11 of 2011 concerning Electronic Information and Transaction Interception under Government Regulation C. Constitutional Court Judgment No. 012, 016/PUU-IV/ IV. Technical Aspect on Lawful Interception in Indonesia V. Surveillance Licensing Mechanisms VI. Privacy: The Indonesian Perspective VII. Conclusion Annexes

4 Preface This research report as result of collaboration project between The Cyber Law Center, Faculty of Law, Padjadjaran University and Privacy International in second year. The research project is to conduct research on the surveillance and Privacy in Indonesia, the objectives of the research study is to study and analyze the legal aspects of privacy and surveillance, were: (i) to views the legal aspects the surveillance expecialy for legal enforcement ; (ii) to give the recommendation to the government in drafting a Bill surveillance mechanism for legal enforcement. on Surveillance is defined as tacitly accept or listen to communication. Usually surveillance refers to acceptance in secret by law enforcement agencies to covertly receive or listen to a communication. Based on this definition, surveillance is an activity that is typically used by law enforcement institution to accept or listen to certain personal communication in secret, in carrying out their duties and obligations. 1 Time after time, public consider that surveillance activity is an improper usage or treatment of an entity and a violation of human rights. National Security Agency (NSA) surveillance case attracts public attention relating to above mentioned issue. One of the security agencies in USA, NSA was conducted wiretaps against the citizens of the United States and against other countries. The case leads to separation of legal opinion among jurists in USA. Washington DC Federal Court in a lawsuit filed by Larry Klayman, a 1 Bryan A Garner, Black s Law Dictionary Ninth Edition, Dallas, Texas: West Publishing, 2009, page 883.

5 conservative legal activists, decided that the NSA's efforts violate the Fourth Amendment protections against unreasonable searches privacy. 2 Meanwhile, dissenting decision came from the New York District Court. William Pauley, In a lawsuit filed by the American Civil Liberties Union, decided that the NSA interception is legal because the intention of such activity is for combating terrorism,. USA have a trauma about terrorism because of 2001 "nine-eleven" tragedy. 3 Surveillance activities brought strong reactions from various states, especially state that consider themselves as surveillance victim such as Germany, Brazil and Mexico. On November 7, 2013, Germany and Brazil submitted draft resolution on the protection of privacy rights against unauthorized wiretapping in the digital age to the United Nations General Assembly (hereinafter referred to as UN General Assembly) which later on December 18, 2013 the UN General Assembly endorsed the draft to the UN General Assembly Resolution A / Res / 68/167 on The rights to Privacy in the digital Age. Article 4 paragraph (a) of the UN General Assembly Resolution A / Res / 68/167 explicitly ask all states to respect and protect privacy right, including privacy rights in digital communications. Moreover, member states are also requested to review the procedures, practices and legislation related to the communication reconnaissance so that such activities conform with international human rights law as stipulated in Article 4 (c) of the UN General Assembly Resolution A / Res / 68/ In Indonesia, surveillance activities was in widespread known since information the Palapa-A I Satelite launching on July 9, Recorded 2 AntaraNews.com, Hakim Putuskan Penyadapan NSA Illegal, downloaded 22th of January, 2014, WIB. 3 Philippe Huguen, Judge Rules NSA Phone Surveillance Is Legal. Is a Supreme Court Intervention Inevitable?, www. nationaljournal. com/technology/judge-rules-nsa-phone-surveillance-is-legal-is-a-supreme-courtintervention-inevitable , downloaded 20th of January, 2014, WIB. 4 Article 4 subesction (c) Resolusi Majelis Umum PBB A/Res/68/ Papper, Naskah Akademik RUU Penyadapan, Trias Yuliana Dewi et. Al., p. 1.

6 in its development, surveillance has got public attention in about 1999, where one of Indonesian national magazine published an recording of conversation between the Attorney General and the President of Indonesia that time. 6 In 2009, Indonesia faced surveillance issue lead to confrontation between the two law enforcement agencies, the Commission against the Indonesian National Police. This issue triggered distrust between the two law enforcement agencies. 7 The development of technology have been used for law enforcing activity. However, in Indonesia, surveillance activity surveilance also gives serious impact on political and security dimension. Currently, Indonesia have several regulations relating to surveillance, those are: 1. Act No. 5 of 1997 on Psychotropic Substances, 2. Act No. 31 of 1999 on the Eradication of Corruption, 3. Act No. 36 of 1999 on Telecommunications, 4. Act No. 39 of 1999 on Human Rights, 5. Act No. 30 of 2002 on the Corruption Eradication Commission, 6. Government regulation to raplace act (Peraturan Pemerintah Pengganti Undang-Undang) No. 1 of 2002 on Combating Terrorism, 7. Act No. 18 of 2003 on Advocates, 8. Act No. 21 of 2007 on the Eradication of Trafficking in Persons, 9. Act No. 11 of 2008 on Information and Electronic Transaction, 10.Act No. 35 of 2009 on Narcotics, 11. Act No. 46 of 2009 on Crime Court Corruption, 12.Act No. 17 of 2011 on the National Intelligence, 13. Precidential Regulation No. 90 of 2012 on State Intelligence Agency 6 Ibid 7

7 14. Ministry of Communication and Information Technology Regulation No. 11 / PER / M.KOMINFO / 02/2006 on Information Surveilance Technique, and 15.Draft of Criminal Procedure Code. The diversity of the relevant regulations related to surveillance activity become human rights protection society concern. In practice, in a number of cases, surveillance was conducted outside its original purpose for law enforcement. Besides that, surveillance activity triggered clash between two law enforcing institutions in Indonesia so that surveillance have become debate topic in Indonesia. This Research was intended to study best practical solution for maximizing surveillance function as a law enforcing tool in Indonesia. Law enforcer must use surveillance to unveil criminal cases in Indonesia instead of using surveillance outsider law enforcing function. The study is important because the development forms of new criminal offenses are very difficult to solve by conventional means (without surveillance).

8 I. Introduction Information and communication technologies have supported interception since the era of Morse s telegraph. Interception is actively practiced worldwide with an increasing number of applications. 8 Wiretapping is the traditional term for interception of telephone conversations. This should not be taken too literally. The word is no longer restricted to communications travelling by wire, and contemporary wiretaps are more commonly placed on radio links or inside telephone offices. The meaning has also broadened in that the thing being tapped need no longer be a telephone call in the classic sense; it may be some other form of electronic communication, such as fax or data. 9 The origins of wiretapping lie in two quite different practices: eavesdropping and letter opening. "Eavesdropping," although once more restricted in meaning, has come to describe any attempt to overhear conversations without the knowledge of the participants. "Letter opening" takes in all acquisition, opening, reading, and copying of written messages, also without the knowledge of the sending and receiving parties. Telecommunication has unified and systematized these practices. Before the electronic era, a conversation could only be carried on by people located within earshot of each other, typically a few feet apart. Neither advanced planning nor great effort on the part of the participants was required to ensure a high degree of security. Written communications were more vulnerable, but intercepting one was still a hit-or-miss affair. Messages traveled by a variety of postal 8 International Telecommunication Unions, Technical Aspect of Lawful Interception, Technology Watch Report #6, May 2008, p.6 9 Whitfield Diffie and Susan Landau, Privacy on the Line The Politics of Wiretapping and Encryption, The MIT Press Cambridge, Massachusetts London, England, 1998, p Surveillance and Privacy in Indonesia Cyberlaw Centre Padjadjaran University