State Surveillance, Notified Later: How Well Is Privacy Protected?

JAKARTA, KOMPAS.com - The mechanism for post-factum notification after wiretapping in the Draft Law on Wiretapping is deemed insufficient to guarantee the protection of citizens’ privacy rights. ELSAM researcher Nurul Izmi emphasises the importance of effective oversight and a comprehensive legal framework. Nurul reminds that the practice of wiretapping is inherently an action that potentially violates human rights, particularly the right to privacy. This has been affirmed in Constitutional Court Decision Number 5 of 2010. In that decision, the Constitutional Court also indicated that wiretapping must be regulated in a specific law with clear mechanisms, including procedures and the authority of each institution. According to Izmi, to assess whether a wiretapping mechanism adequately protects privacy, it must be evaluated based on its fundamental principles. She mentions that there are at least three main principles: necessity, proportionality, and legality. The authorisation must contain detailed information, such as the duration of the wiretapping, the identity of the tapped party, and the underlying reasons. “This means that the implementation of wiretapping is carried out with a limited mechanism and for specific purposes in the interest of law enforcement,” she said. In addition, wiretapping must also be based on sufficient preliminary evidence. Izmi assesses that this is important given the power imbalance between the state and individuals, so the wiretapping mechanism must be designed strictly and limited. Izmi explains that the post-factum notification mechanism is not new. Several countries, such as Germany and Sweden, have also implemented similar practices.