Surveillance and Privacy in Indonesia.
Surveillance and
Privacy in Indonesia
Table of Contents
Preface
I.
Introduction.......................................................................................... 1
II. Enabling Statutes and Authorization.................................................... 6
III. Cases in Indonesia ............................................................................ 12
A. Constitutional Court Judgment No. 006/PUU-I/2003, Judicial
Review on Law No.30 of 2002 concerning Commission on
Eradication Corruption (KPK) ...................................................... 12
B. Constitutional Court Judgment No. 5/PUU-VIII/2010 Law
No.11
of
2011
concerning
Electronic
Information
and
Transaction “Interception under Government Regulation”........... 25
C. Constitutional Court Judgment No. 012, 016/PUU-IV/2006......... 31
IV. Technical Aspect on Lawful Interception in Indonesia ....................... 41
V. Surveillance Licensing Mechanisms.................................................. 64
VI. Privacy: The Indonesian Perspective ................................................ 69
VII. Conclusion......................................................................................... 74
Annexes
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
1
Bryan A Garner, Black’s Law Dictionary Ninth Edition, Dallas, Texas: West
Publishing, 2009, page 883.
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.
3
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-courtintervention-inevitable-20131227, downloaded 20th of January, 2014, 14.05 WIB.
4
Article 4 subesction (c) Resolusi Majelis Umum PBB A/Res/68/167.
5
Papper, Naskah Akademik RUU Penyadapan, Trias Yuliana Dewi et. Al., p. 1.
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
7
Ibid
http://id.wikipedia.org/wiki/Konfrontasi_Cicak_dan_Buaya
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).
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. 151.
1
Surveillance and Privacy in Indonesia | Cyberlaw Centre Padjadjaran University
Privacy in Indonesia
Table of Contents
Preface
I.
Introduction.......................................................................................... 1
II. Enabling Statutes and Authorization.................................................... 6
III. Cases in Indonesia ............................................................................ 12
A. Constitutional Court Judgment No. 006/PUU-I/2003, Judicial
Review on Law No.30 of 2002 concerning Commission on
Eradication Corruption (KPK) ...................................................... 12
B. Constitutional Court Judgment No. 5/PUU-VIII/2010 Law
No.11
of
2011
concerning
Electronic
Information
and
Transaction “Interception under Government Regulation”........... 25
C. Constitutional Court Judgment No. 012, 016/PUU-IV/2006......... 31
IV. Technical Aspect on Lawful Interception in Indonesia ....................... 41
V. Surveillance Licensing Mechanisms.................................................. 64
VI. Privacy: The Indonesian Perspective ................................................ 69
VII. Conclusion......................................................................................... 74
Annexes
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
1
Bryan A Garner, Black’s Law Dictionary Ninth Edition, Dallas, Texas: West
Publishing, 2009, page 883.
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.
3
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-courtintervention-inevitable-20131227, downloaded 20th of January, 2014, 14.05 WIB.
4
Article 4 subesction (c) Resolusi Majelis Umum PBB A/Res/68/167.
5
Papper, Naskah Akademik RUU Penyadapan, Trias Yuliana Dewi et. Al., p. 1.
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
7
Ibid
http://id.wikipedia.org/wiki/Konfrontasi_Cicak_dan_Buaya
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).
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. 151.
1
Surveillance and Privacy in Indonesia | Cyberlaw Centre Padjadjaran University