Provision of Real-time Lawful Interception Assistance

NOTE: The pertinent legal frameworks have undergone some changes since this report was last updated, including with adoption of the “Anti-Cyber and Information Technology Crimes” law in August 2018.

CONSTITUTION OF EGYPT

Articles 57 and 58 of the Constitution of Egypt explicitly protect the privacy of communications, prohibiting their surveillance except with a reasoned court order for a specific time, in accordance with the law.

THE EGYPTIAN CRIMINAL CODE AND THE CRIMINAL PROCEDURES CODE

According to the Egyptian Criminal Code (Law 58 of 1937) and the Criminal Procedures Code (Law 150 of 1950), a prosecutor or investigative judge may issue a warrant authorizing the interception and recording of individual communications when investigating a possible crime.

Under Article 95 of the Criminal Procedures Code, reasoned warrants from a prosecutor or investigative judge can be issued where they assist in the investigation of any felony or misdemeanor attracting a sentence of over three months, for no more than 30 days and can be renewed once; or by a direct order from an authorized member of the armed forces or security agencies. There are no explicit regulations regarding the latter.

THE COMMUNICATIONS LAW (LAW 10 OF 2003)

The Communications Law (Law 10 of 2003) regulates the communications industry, including law enforcement agencies access to communications and communication infrastructure. It is generally illegal under criminal law to intercept or record private communications except pursuant to a judicial warrant, but the Communications Law allows broad latitude to the armed forces and security agencies to obtain information pursuant to national security concerns, which are not defined.

Article 64 of the Communications Law stipulates that telecom companies must ensure that their communications networks allow the Armed Forces and the various national security agencies to exercise their authorities under the law.

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 attracts criminal penalties including imprisonment. National security is defined at the discretion of the authorities.

There is no directly applicable text in the law, but in accordance with Articles 64 and 67 of the Communications Law, the armed forces and national security agencies have broad latitude to intercept communications with or without an operator’s control or oversight.

Disclosure of Communications Data

THE EGYPTIAN CRIMINAL PROCEDURES CODE

The Egyptian Criminal Procedures Code (Law 150 of 1950) gives law enforcement agencies the legal authority to require the disclosure of communications data. Under Article 95 of the Criminal Procedures Code, reasoned warrants from a prosecutor or investigative judge can be issued where they assist in the investigation of any felony or misdemeanour attracting a sentence of over three months, for no more than 30 days and can be renewed once; or the instrument may be a direct order from an authorised member of the armed forces or security agencies. There are no explicit regulations regarding the latter.

National Security and Emergency Powers

Except as already outlined above, law enforcement agencies and intelligence agencies do not have any other legal authority to invoke special powers in relation to access to communication service providers’ customer data and/or network on the grounds of national security or a state of emergency.

Oversight of the Use of Powers

Applications made pursuant to the Egyptian Criminal Code and the Criminal Procedures Code require a warrant to be issued by a judge. When making an application to the court, the standard is that the court should be satisfied that the warrant is needed for a ‘serious effort’ to be made investigating the crime in question.

Anyone claiming violation of privacy or illegal wiretapping can bring a civil suit for damages or file charges for the use of illegal wiretaps, or seek to have illegally obtained evidence dismissed.

Generally, the armed forces and national security agencies are largely exempt from any control or oversight by the communications regulator, the National Telecommunications Regulatory Authority.

Censorship-related Powers

SHUT-DOWN OF NETWORK AND SERVICES

Telecommunications Regulation Law

Article 67 of the Telecommunications Regulation Law (No. 10 of 2003) provides that all telecommunications providers (including Vodafone) are subject to the direct control of the competent government authority, the National Telecommunications Regulatory Authority (the NTRA) in circumstances relating to national security and other major incidents such as natural and environmental disasters or during the declaration of general mobilisation in accordance with the General Mobilisation Law (No. 87 of 1960). In such circumstances, the NTRA, in coordination with the armed forces and the competent authorities, can oblige all telecommunications providers to execute its pre-emptive plan designed for ensuring defence and national security. What constitutes national security is determined by the government. Such control can extend to shutting down a provider’s entire network or part of their services.

The NTRA has the power to suspend a telecoms provider’s licence if it does not comply with its directions in such circumstances. Telecoms providers have the right to be compensated for damages they suffer as a result of carrying out the plan under Article 68.

BLOCKING OF URLS & IP ADDRESSES

The Criminal Code

The Criminal Code contains a number of provisions regarding the dissemination of blasphemous or defamatory material, and may be used to legally require any telecoms provider (including Vodafone) to remove such material insofar as possible.

POWER TO TAKE CONTROL OF VODAFONE’S NETWORK

Telecommunications Regulation Law (No. 10 of 2003 )

Please refer to ‘Shut-down of network and services’ above. It is feasible that this legal power could be used by a competent state authority to take control of a network (such as Vodafone’s).

Oversight of the Use of Powers (Censorship-related)

TELECOMMUNICATIONS REGULATION LAW NO. 10 OF 2003

Under Article 69, employees assigned by NTRA, the armed forces and national security entities may, upon a resolution by the Minister of Justice in coordination with the minister concerned, be considered judicial officers regarding crimes committed in violation of the Telecommunications Regulation Law (No. 10 of 2003) as related to their positions’ scope of work. Otherwise there is no judicial oversight of the NTRA’s use of its powers.

Encryption and Law Enforcement Assistance

1. Does the government have the legal authority to require a telecommunications operator to decrypt communications data where the encryption in question has been applied by that operator and the operator holds the key?

Yes. Articles 57 and 58 of the Constitution of Egypt explicitly protect the privacy of communications, prohibiting their surveillance except with a reasoned court order for a specific time, in accordance with the law.

According to the Egyptian Criminal Code (Law 58 of 1937) and the Criminal Procedures Code (Law 150 of 1950), a prosecutor or investigative judge may issue a warrant authorising the interception and recording of individual communications when investigating a possible crime.

The Telecommunications Law (Law 10 of 2003) regulates the telecommunications industry, including law enforcement agencies’ access to communications and communication infrastructure.

It is generally illegal under criminal law to intercept or record private communications except pursuant to a judicial warrant, but the Telecommunications Law allows broad latitude to the armed forces and security agencies to obtain information pursuant to national security concerns, which are not defined.

2. Does the government have the legal authority to require a telecommunications operator to decrypt data carried across its networks (as part of a telecommunications service or otherwise) where the encryption has been applied by a third party?

Article 64 of the Telecommunications Law states that:

… All network operators are obliged, at their expense, to allow the armed forces and security agencies access to all their equipment, programs and technical capabilities to enable them to exercise their jurisdiction…

Therefore, the government may seek a telecommunications operator’s cooperation in this regard insofar as it is technically possible for the telecommunications operator to assist. However, a telecommunications operator cannot assume the responsibilities or liabilities of a third party, especially those to or over whose network and equipment such an operator has no access or control. In practice, the most that the telecommunications operator could do would be to let the authorities know the contact details for the third party concerned.

3. Can a telecommunications operator lawfully offer end-to-end encryption on its communications services when it cannot break that encryption and therefore could not supply a law enforcement agency with access to cleartext metadata and the content of the communication on receipt of a lawful demand?

No. According to Article 64 of the Telecommunication Regulation Law, an encryption of telecommunication services by any operator must be approved by the NTRA prior to its application.

The same Article elaborates in the same regard and provides that All network operators are obliged, at their expense, to allow the armed forces and security agencies access to all their equipment, programs and technical capabilities to enable them to exercise their jurisdiction, which, according to our interpretation, compels an operator to have the decryption tools – of any encryption solution it may apply – availed for the lawful use thereof by the armed forces and security agencies.

4. Please provide examples in your jurisdiction where legislation which predated the advent of commercial encryption (which we estimate to be circa 1990) has been applied to contemporary cases involving encryption.

There are no such examples in this jurisdiction.