Provision of Real-time Lawful Interception Assistance

Some of the pertinent legal frameworks have changed since this report was last updated with the passing of the Digital Security Act, 2018, in October 2018.

BANGLADESH TELECOMMUNICATION REGULATORY ACT, 2001 (THE “BTRA”)

Section 35 BTRA requires every person establishing or operating a telecommunication system to have a licence. The term, “person” is defined in section 2(24) of the BTRA and includes any natural person, partnership, society, company, corporation, co-operative society or statutory body. In addition, the definitions of “telecommunication”, “telecommunication system” and “telecom service” are widely drawn, covering users and service providers in connection with telecommunication services and apparatus.

Section 97(Ka) BTRA (as introduced by the Bangladesh Telecommunications (Amendment) Act 2006) is the sole statutory basis from which the government derives its powers in relation to surveillance and censorship, as outlined below.

Under section 97(Ka) BTRA, on the grounds of national security and public order, the government may empower certain government authorities (intelligence agencies, national security agencies, investigation agencies, or any officer of any law enforcement agency) to suspend or prohibit the transmission of any data or any voice call, and record or collect user information relating to any subscriber to a telecommunications service. This widely drafted provision encompasses interception capabilities. The relevant telecoms operator must provide full support to the authority empowered to use such powers. The BTRA does not provide for any time limits on these powers. As a result, an interception may last for as long as the agency implementing the interception decides.

Under this section, “government” means the Ministry of Home Affairs; provisions under this section are applicable upon approval by the Minister or State Minister of that Ministry.

INFORMATION AND COMMUNICATION TECHNOLOGY ACT

The ICT Act regulates the use of digital signature certificates and the provision of data services and defines a series of offences related to malicious activity online. It provides remedies for offences such as unauthorized damage to computer systems, tampering with computer source code, hacking, publishing false, obscene or defamatory information in electronic form, and publishing false digital signature certificates.

The ICT Controller is an officer appointed under the ICT Act and regulates its implementation. Under section 29 of the ICT Act, the Controller, or any officer authorised by him should investigate any contravention of the ICT Act, or the rules or regulations made under it. In order to do so, the Controller or authorised officer has the same powers as those vested in a Civil Court under Bangladesh’s Code of Civil Procedure, which include powers of “discovery and inspection” and “compelling the production of any document”.

Under section 30, the ICT Controller may access any computer system, apparatus, data or other material connected with a computer system for the purpose of searching or causing a search to be made for obtaining any information contained in or available to the computer system. The ICT Controller may, by order, direct any person in charge of, or otherwise concerned with the operation of, the computer system, data apparatus or material, to provide him with such reasonable technical and other assistance as he may consider necessary.

Under section 46 of the ICT Act, if the ICT Controller feels that, in the interests of the sovereignty, integrity, or security of Bangladesh, international relations, public order or for preventing incitement to commission of a legally recognised offence, it is necessary or expedient, they can direct any law enforcement agency of the government to intercept any information transmitted through any computer resource. In addition, they may order the subscriber or any person in charge of a computer resource to provide all necessary assistance to decrypt the relevant information. The reasons for undertaking such a measure must be recorded in writing.

Disclosure of Communications Data

BANGLADESH TELECOMMUNICATION REGULATORY ACT, 2001 (THE “BTRA”)

There is no direct reference in the BTRA to storage of metadata. In general, storage of data relating to customers is likely to be a condition of a telecommunication operator’s individual licence, which commonly requires operators to store metadata for a specified period of time. As billing is done on a monthly basis, operators need to store metadata for subscribers at least for a sufficient period so that the subscribers may make enquiries or seek an itemised bill before payment.

Under the broad powers granted in section 97(Ka) BTRA, on the grounds of national security and public order, the government may require a telecommunications operator to keep records relating to the communications of a specific user. However, when considering whether to make a retention request, the relevant government agency would need to consider the technical resources and capabilities of the operator to retain information.

INFORMATION AND COMMUNICATION TECHNOLOGY ACT 2006 (THE “ICT ACT”)

The ICT Controller or any person authorised by him can seek metadata when exercising the investigatory powers provided under section 29 of the ICT Act for the purpose of discovery and inspection, enforcing the attendance of any person and examining him under oath or affirmation, compelling the production of any document, and issuing commissions for the examination of witness for any offence committed under the ICT Act.

National Security and Emergency Powers

BANGLADESH TELECOMMUNICATION REGULATORY ACT, 2001 (THE “BTRA”)

Under section 96 BTRA, the government may, on the grounds of public interest, take possession of any telecommunication system, and any arrangements that are necessary for operating it. It may continue such possession for any time period and keep the operator and his employees engaged on a full-time basis or for a particular time for the purpose of operating such apparatus or system. The government is obliged, however, to pay proper compensation to the owner or the person having control of the radio apparatus or the telecommunication system over which it takes control.

Under section 97 BTRA, when a foreign power declares a state of war, or creates a warlike situation against Bangladesh, when there is an internal rebellion or disorder, or in a situation where the defence or security of Bangladesh or any other urgent state-affair needs to be ensured, the government will have priority over the operator or any other user regarding the use of a telecommunication system.

Moreover, if the President of Bangladesh declares a state of emergency, the government may suspend or amend any licence or certificate or permit issued under the BTRA, or suspend any particular activity of, or a particular service provided by, an operator.

Section 97(Ka) BTRA, as outlined in the sections above, is also applicable in states of emergency or national security.

Furthermore, section 66(Ka) BTRA (incorporated by the Bangladesh Telecommunications (Amendment) Act 2006) empowers the Bangladesh Telecom Regulatory Commission (the “BTRC”) to stop any signal, message or request from any subscriber (where it is expedient to do so), in the interest of the sovereignty, integrity, or security of Bangladesh, international relations, public order or for preventing incitement of a legally recognised offence. Operators must assist the BTRC to implement this order.

TELEGRAPH ACT 1885 (THE “1885 ACT”)

It should be noted that some relevant sections of the BTRA’s predecessor, the Telegraph Act 1885 (the “1885 Act”) are also still in force. However, no operating licences are currently issued under the 1885 Act. As a result the following provisions are no longer used, though we mention them for the sake of completeness:

• Section 5 of the 1885 Act provides that, in the case of a public emergency or in the interest of public safety, the government or any officer authorised by the government, may take temporary possession of any telegraph established, maintained or worked by any person licensed under this Act.

• Under the 1885 Act the government or are authorised officer may order that any message or class of messages to or from any person or class of persons (relating to any particular subject) sent or received by any telegraph, may be blocked, intercepted or detained by, or disclosed to, the government or an officer thereof mentioned in the order.

Oversight of the Use of Powers

There are no oversight mechanisms mandated in law in relation to the above legislation. However, the government and the Bangladesh Telecom Regulatory Commission may exercise oversight.

The empowered law enforcement agency may bring a claim against any non-compliance with the rules mentioned above and there are stipulated penalties for first time, second time and third time failures.

Censorship-related Powers

BANGLADESH TELECOMMUNICATION REGULATORY ACT, 2001 (THE “BTRA”)

It should be noted that the national security-related powers granted under s. 97(Ka) BTRA discussed above in section 3.1 could, at least in theory, be used for the purposes of censorship.

INFORMATION AND COMMUNICATION TECHNOLOGY ACT 2006 (THE “ICT ACT”)

Under section 45, the ICT Controller (explained above) may issue an order to a licence-holder under the ICT Act to take certain measures or cease certain activities as specified in such order, if necessary to ensure compliance with the provisions of the ICT Act, or rules and regulations made under it.

Under sections 57 and 59 of the ICT Act, if any person deliberately publishes or transmits, or causes to be published or transmitted, on a website or in any electronic form any material which:

1)     is false or obscene; or

2)     would lead to (or create the possibility of leading to) a deterioration in law and order;

3)     would prejudice the image of the State; or

4)     would or may offend religious belief; or

5)     incite hostility against any person or organisation,

this activity will be regarded as an offence, and the ICT Controller may make an order to block the communication flow.

Publication of Laws and Aggregate Data

RESTRICTIONS ON NETWORK OPERATORS AND SERVICE PROVIDERS

There is no direct statutory restriction on publishing aggregated data on government requests for surveillance and censorship powers described above. However the Bangladesh Telecom Regulatory Commission may declare such data to be confidential, exercising its discretion under section 85(1) of the BTRA.

In addition, as the powers are exercised on the grounds of national security and public order, any information relating to the use of such powers is considered confidential information as it may be part of an investigation or used in judicial proceedings. An equivalent position is adopted under the Right to Information Act 2009, under which any information that is given in confidence to any law enforcement agency is excluded from publication under the scope of the Act.

AGGREGATE DATA PUBLISHED BY GOVERNMENT AGENCIES

As far as we are aware, the government does not publish aggregate data relating to its use of the powers described in this report.