Surveillance and Privacy in Indonesia.

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Surveillance and

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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 on

surveillance mechanism for legal enforcement.

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

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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 /

68/167.4

In Indonesia, surveillance activities was in widespread known since

information the Palapa-A I Satelite launching on July 9, 1976.5 Recorded

2

AntaraNews.com, “Hakim Putuskan Penyadapan NSA Illegal”, http:// www.antaranews.com/berita/409907/hakim-as-putuskan-penyadapan-nsa-ilegal,

downloaded 22th of January, 2014, 14.00 WIB.

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Philippe Huguen, Judge Rules NSA Phone Surveillance Is Legal. Is a Supreme Court Intervention Inevitable?, http:// www. nationaljournal.

com/technology/judge-rules-nsa-phone-surveillance-is-legal-is-a-supreme-court-intervention-inevitable-20131227, downloaded 20th of January, 2014, 14.05 WIB.

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Article 4 subesction (c) Resolusi Majelis Umum PBB A/Res/68/167.

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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

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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

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1 Surveillance and Privacy in Indonesia |Cyberlaw Centre Padjadjaran University

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

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International Telecommunication Unions, Technical Aspect of Lawful Interception, Technology Watch Report #6, May 2008, p.6

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Surveillance and Privacy in Indonesia.