1. INTRODUCTION
Since the terrorist attacks of September 11, 2001, concerns about national security have risen
significantly, at the expense of privacy rights. Remarkably, one-third of people surveyed agreed
that “this use of investigative powers by the president should be done under his executive authority
without needing Congressional authorization”. In post-9/11 America, President Nixon’s abuses of
presidential power seem like ancient history (Quinn, 2013).
Innovations in technology have facilitated increased possibilities for communication and freedom
of expression, enabling anonymity, rapid information sharing, and cross cultural dialogues. At the
same time, changes in technologies have also provided new opportunities for State surveillance
and intervention into individuals’ private lives (Rue, 2013). These technologies which in the first
place are created within existing state laws and policies, have enabled governments to enact laws
that seek to monitor private communications. Communication surveillances have been on a
massive scale to the extent that it has moved from monitoring ordinary individuals to very
prominent people as in the case of National Security Agency (NSA) spying on German Chancellor
Angela Merkel which was revealed in February, 2015. The National Security Agency (NSA)
widespread wiretapping as released by Edward Snowden dubbed Wiki Leaks caused mixed
reactions from all over the globe. The controversial argument raised debates over government
communication surveillance, secrecy and the balance between the constitutional right to privacy
and governments responsibility to provide national security. The right to privacy is a fundamental
human right enshrined in many constitutions in several countries practicing democratic form of
government. But should one assume that once they are hooked onto any of these communication
networks like internet and telephony, they do have complete privacy especially in the era of social
media and advancement in communication gadgets? The real threat of global terrorism, drugs
trade, money laundering amongst other social crimes are being facilitated by sophisticated
communication through the internet or mobile phone.
Governments all over the world are enacting laws to mitigate or curtail the threats that accompany
sophistication in telecommunication now. The United States has the Providing Appropriate Tool
Required to Intercept and Obstruct Terrorism (PATRIOT), ACT 2001, Electronic
Communications Privacy Act 1986 (ECPA) and ESCHELON, which is pact signed by five nations
including the UK, Canada, Australia and New Zealand as examples of law that seems to provide
basis for communication surveillance. Several other countries like the United Kingdom, French
have also enacted similar laws to intercept communications on their citizens. The laws have
become necessary because of occurrence of terrorism which has become prevalent in the world.
Most of these acts of terrorism have been orchestrated by persons within the country with
collaboration with other people from other countries.
Not withstanding the strong argument for the state to have the powers to monitor its citizens so as
to protect them, it must be worth noting that from the Paternalism theory and social contract theory,
where it strongly supports and give credence to the state in making those decisions, this will be
partly depending on the kind of state. In a typical dictatorship state or a weak democracy where
the vote buying, intimidation is prevalent, this will mean that the wrong kind of people who may
be ethically egoistic may be making decision by looking into themselves only but not the general
population.
The government of Ghana seeks to pass a law that allow government agencies to wiretap and
intercept packages meant for its citizens on suspicion of wrong doing through the Interception of
Postal Packages and Telecommunication Bill (ITTPA) it has submitted to Parliament. This has
become become necessary due to these major reasons. First of all, with the discovery of oil in
Ghana, our neighbors’ especially, the Ivory Coast, has been challenging Ghana on boundaries
issues. In this regard, the navy has been put on high alert to monitor communication in and around
the sites to curb any unrest that may occur as a result of the discovery with our neighbor. Such
surveillance is done by intercepting radio communication and jamming of cell sites. Secondly, the
National Security Agency recently gave notice of terrorism threat in Ghana. Such information was
made credible through communication interception for which the person’s involved testified that
Ghana was next to be attacked after Burkina Faso and Ivory Coast. Again, certain crimes like
armed robbery, murder, drug have been on the rise and these vices increases the security threat
posed to the state. In the light of all these instances, it has become necessary for the state to find a
legal framework that will deal with how communication surveillance and its interception will be
conducted. The main objective of the bill is to permit the law interception of postal packet and
telecommunication messages for the purpose of fighting crime, suppressing organized crime
including money laundering, terrorism and narcotics trafficking, and to identify theft and the
protection of national security.
The bill has raised several objections from civil society and certain notable institutions as it
infringes on individual privacy and that not enough consultation has been done. Among the notable
institutions which have objections to this bill are the Privacy International, Imani Ghana, Occupy
Ghana and individuals such as Mr. Martin Amidu, former Attorney General of the Republic of
Ghana. Several reasons have been cited for the abolition of such a bill even for consideration by
parliament. Among them are the infringement on the civil liberties enshrined in the constitution,
tendency for abuse by the state as the national security advisor is appointee of the government.
Again, the citizens have not been engaged in the discussion. Privacy international intimated that,
most sessions or clauses in the bill are vague and that it could lead to the seamless abuse by the
state security agencies. Considering the increasing ubiquitous of telecommunication tools and
networks and the threat to society posed by the application of these networks, it has become
necessary to draw a line between how the use affects the security even to the individual or the
nation and how not to infringe on the privacy rights of the user. The ethical dilemma lies not in
just the legality of wiretapping, but in the question of our private and public freedoms being run
over by a zealous government, all in the name of national security (Mullikin & Rahman, 2010).
Do government and security agencies have a moral ground to listen in to one’s communication
based on suspicion? Is the violation of one’s privacy not relevant if the end result leads to the good
of society? Does Ghana have requisite tools and legal framework to deal with surveillance? All
these are questions that needs to be addressed so as to create a neutral ground for the balance
between communication surveillance and the right to privacy.
In this paper, the nature of communication surveillance and the laws under which they are
appropriated would be reviewed. The national security implication and whether it is ethical for the
governments, especially that of Ghana, to push through the passing and implementation of this law
would be analyzed.
The Utilitarian ethical theory, State Paternalism theory and the Kantianism will be used as a basis
to defend the position that, although our privacy will be curtailed someway, the greater good is
done if the law is formulated to protect individual’s privacy right and still keeps us secure by
eliminating threats that may prevail in the country.
2
LITERATURE REVIEW
2.1 COMMUNICATION SURVEILLANCE
“A popular Government, without popular information, or the means of acquiring it, is a Prologue
to a Farce or a Tragedy; or perhaps both”, James Madison.
Communication surveillance is the monitoring, interception, collection, preservation and retention
of information that has been communicated, relayed or generated over communications networks
to a group of recipients by a third party (Privacy International, n.d.)
Mostly, unless, done with criminal intentions like installing malware or tapping of communication
networks illegally, surveillance is normally backed by a court order which is normally based on
law of the state. Under very urgent circumstances, state agencies like law enforcement agency,
intelligence agency or a private company are allowed to conduct surveillance such as under the
PATRIOT ACT without a court order.
Communication surveillance is done based on a number of factors but the most dominant reason
for government surveillance is security. The threat of global terrorism, drug trafficking, human
trafficking and robberies have made it necessary for the state to implement these laws in order to
curtail the damage these activities cause the society. For example, most developed countries like
the US and UK do have surveillance cameras installed on roads and highway to check over
speeding and unsafe driving. Offenders are given fine and in some instance their driving licenses
withdrawn. This form of surveillance provides a means of making driving safe which leads to less
accidents and casualties.
In as much as development in communication networks have increased tremendously over the past
three decades giving users control over which device or medium to use, it has also exposed the
user to be less private than before since the they don’t control the medium by which they
communicate and even the software that are running on their communication devices. Their
engagement with social media, ecommerce, associations also exposes them to be targets for
surveillance.
Several forms of communication surveillance exist but common among these are internet
monitoring, mobile phone interception, fixed line interception and intrusion technologies. Soloves
taxonomy of privacy provides four (4) main definition or processes by which surveillance is
conducted. This involves the collection of information through social media, e-commerce, census
or other approved medium. The United States uses the national census conducted every ten (10)
year, Internal Revenue, National Crime Information Centre, Department of Justice and ClosedCircuit Television camera’s to collect data on its citizens (Quinn, 2013). Processing of collected
information using analytical tools can lead to other realities that may not have been the reason for
collecting the data in the first place. Dissemination of processed information and finally leading to
invasion based on the information gathered. Government or states embarking on communication
surveillance collect information from phone conversations, internet sites visited, email habits,
credit card and bank records and almost everything that is communicated electronically. The nature
of communications surveillance is such that, it is always done at the blind side of the person or
groups being monitored. Unless such persons have systems that can detect they are being
monitored, information collected overtime becomes conclusive for making decision or taking an
action to either avert or curtail an action against the state. This could be done to test the degree of
security being provided to those transmissions (Penetration tests). In particular, the purposes
include providing a basis for advising commanders on the security risks resulting from their
transmissions, improving the security of communications, and planning and conducting
manipulative communications deception operations.
It is also sometimes nationally conducted in allied exercises to aid in analysis of communication
security to be able to protect all stakeholders of the communication system against crimes
including money laundering, terrorism, narcotic trafficking and identity theft.
2.2 THE RIGHT TO PRIVACY
According to the Stanford Encyclopedia of Philosophy, the concept of privacy has roots in
philosophical discussions including Aristotle’s distinction between the public sphere of political
activity and the private sphere of domestic family life (Trina, 2013)
Privacy is a fundamental human right recognized in the UN Declaration of Human Right, the
International Covenant on Civil and Political Rights and in many other international and regional
treaties. Although, it s a fundamental right, it is or may be not absolute human right and most
significantly, losing its meaning in this technological era. Almost all democracies have laws
enshrined in their constitutions or through the courts, the right to privacy, in its lowest form, the
right to non-violation of one’s home and the secrecy of communications. Such laws are also based
on international conventions such as the UN Declaration on Human Right, the European
Convention on Human Right and other internationally recognized laws on human right. The 1948
Universal Declaration of Human Rights, in article 12, states that, “No –one should be subjected to
arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honor
or reputation” (Universal Declaration of Human Rights, 1994)
The right to privacy is the ability of an individual to determine who holds information about them
and how that information is used (Rue, 2013). In other words, a person’s right is a social contract
that allows an individual to have some control over his able to gain access to his physical self and
personal information. (Warren & Brandeis, 1890), intimated that, privacy is the right to be left
alone. In this regard, one can place the right to privacy within a moral or legal context. Without
legality, a person has a fundamental right that can be explained in terms of other fundamental
rights like life, liberty and Property (Alfino & Mark, 2003).
Protection of privacy has become more important in this technological dispensation. Adoption of
laws to protect privacy can be attributed mostly to the following reasons. First, to provide remedy
for past injustices as in the case of dictatorial leadership where privacy is violated at will. Secondly,
the advancement of electronic communication within and across states requires protection for
individuals personal and financial information. Again to ensure conformity to international laws
and to protect communication across border, most countries especially in Europe and Canada are
enacting laws that seeks to be coherently adopt international laws on privacy albeit a requirement
so as to be able to transact business amongst them.
Privacy has both benefits and harms for the individual and by extension to society. (Trina, 2013)
professed fourteen (14) reasons privacy matters by reviewing scholarly articles from different
disciplines. She places the benefits into three (3) categories. These were the benefits to the
individual, benefits to personal relationships and the benefits to society. Some benefits to the
individual include, the protection of the individual from overreaching social interactions and
opportunity for relaxation and concentration (Warren & Brandeis, 1890), affirmation of selfownership and ability to be a moral agent (Reiman, 1976), prevents intrinsic loss to freedom of
choice (Reiman, 1976), allows for freedom from self-censorship and anticipatory conformity and
allows people to explore their “rough draft” ideas.
2.3 STATE PATERNALISM
Limiting the freedom to fully control one’s space as against the state’s mandate to provide
maximum security without infringing on it’s right to privacy has been an unending debate. The
debate resides within and not limited to the ethical justification, the legality, possible abuse by the
state and security. As stated earlier, privacy is fast losing its significance with the prevailing
advancement in communication networks such as the internet, mobile devices have become
prevalent. The ethical justification of privacy should be looked in the context of a workable ethical
theory that should persuade us to accept that if we were allowed to maintain total privacy, the
whole society would be better than the state curtailing that privacy by interfering in our
communications just to ensure that they are up to date in providing security for all.
Trelaine Ito, provides an ethical justification of state paternalism considering the restriction of
individuals’ freedom and rights to maximize group utility. He argues that, the state derives its
authority from act-utilitarianism, a theory that values utility (happiness) as a measurement for
consequences and subsequent course of justifiable manner (Mautner, 2010). Using the theory of
Paternalism, which recognizes the need to prevent self-inflicted harm as a legitimizing reason for
coercive legislation, he makes the points that, persons competent and sometimes non-competent
or irrational people need to be protected from causing harm to themselves or others. In order words,
limiting individual freedom in a way that increases the utility of the many is the core component
of state paternalism. In championing for strong state paternism, Gerald Dworkin asserts that,
“Extensions of paternalism are argued for by claiming that in various, chronologically mature
individuals share the same deficiencies in knowledge, capacity to think rationally, and the ability
to carry out decisions that children posses” (Schauer & Sinnot-Armstrong, 1996). As an example,
people have the right to smoke but since secondary smoking has been found to be causing cancer
on a large scale, the state must legislate laws that seeks to protect that persons right to smoke
whiles making sure his actions doesn’t affect others. It is the reason for most countries prohibiting
smoking in public places.
The second argument he makes is that, freedom or liberty does not have in it self an intrinsic value
but rather the the value is in the consequence of freedom or privacy. The intrinsic value of
something is said to be the value that thing has “in itself,” or “for its own sake,” or “as such,” or
“in its own right.” Using the same example, a person smoking in public would be doing so within
his own right or freedom, but the value of what he does, is in the consequence of how other people
who may not be smokers inhaling it and possibly suffering from cancer.
The final point made by the author is that, the state has more resources comparatively to collect
data, analyze and make decisions that affect everyone more than an individual. When the state has
to make a decision, it looks at the interest of everyone involved and come to a conclusion based
how best, it will help all and not just some.
It would seem, however, that most of the literature that debates the individuals right to privacy and
the government’s right to secure its citizens falls into the broader category of social contract theory.
The idea of the state should be placed in the context that, the people making the decisions who are
the government are chosen by the individual within the state. Their ideologies are ideas shared by
the majority of the people in the state. And hence, according to Hobbes, Locke and Rousseau, the
power of the state is derived from the consent of its citizens. The idea of consent implies a
normative power to bind oneself (D'Agostino & Gaus, 2008). In this regards, anything that is right
or wrong with the state is the decision or the will of the state.
3.
THEORITICAL FOUNDATION
From the eighteenth century to date, six authors have significantly contributed to the utilitarianism
ethical theory.
First was David Hume, who argued that our moral thoughts are driven by what we find agreeable.
He argues that the utilitarianism focus on well-being has a strong basis in human nature.
Second author was Jeremy Bentham. His book “An Introduction to the Principles of Morals and
Legislation”, he demonstrated the application of utilitarianism to issues such as Penal and Criminal
Law. John Stuart Mill, the third author, gave his own version of the theory in 1861 through an
essay “Utilitarianism”. This essay is currently the most widely read utilitarianism version. John
built his version on the rigorous thoughts of Jeremy Bentham. But he also added other thoughtful
versions of moral motivation and the role of moral rules in utilitarian reasoning about moral
problems. Fourth is Henry Sidgwick, who published “The Methods of Ethics”. This publication is
viewed as the most ethical, organized and detailed refined paper on utilitarianism. The fifth author,
R. M. Hare published several articles in the second half of the twentieth century. In these articles,
Hare argued that a practice of utilitarianism is necessitated by the most probable meta ethical
theory of the meaning of ethical terms such as ‘ought’. He also defended it as the practical way of
resolving a range of ethical complications. Finally, the late Peter Singer made use of books,
articles, newspapers and television broadcasts to publicly argue for utilitarian approaches to
matters such as the treatment of animals, poverty relief and other issues in medical ethics.
Governments surveillance which involves collection, processing, dissemination of information
and its consequence on the privacy of its citizen must be situated in a workable ethical theory.
Several theories tend to support the notion of balancing privacy with security taking into the
consideration the benefits for everyone. Coming from the foundation that, privacy is prudential
and not a natural right, and again, knowing the harms and benefit of privacy, we discuss that for
ethical reason, there must be a compelling support for people to give up certain rights to enjoy
security or vice-versa. In this regard, we discuss the utilitarian theory of ethics, it’s history and the
characteristics.
Utilitarianism is an ethical theory that is more interested in consequences than intent. An act is
considered right if it’s good outcomes is more than the bad outcomes (Eggleston, 2012). People
are expected to act in a way that will result in the greatest possible amount of well-being.
Utilitarianism became a well-defined ethical theory during the eighteenth century.
It can be described as a theory of ethics because it tells good or bad and also right or wrong. But
some of the key concepts of it talks about the conduct of public life. This makes the theory political.
The theory is an assessment of the total utility, that is, happiness from an action, motive, policy or
institution. The justification of an action is determined by the value of the consequences of that
particular act. Utilitarians believe that the main reasons behind morality is to better life through a
boost in the amount of good things (such as pleasure and happiness) and a reduction in negative
things (such as pain and unhappiness).
Utilitarianism does not agree to systems that use moral guides based on customs, traditions, or
orders given by leaders or supernatural beings. Instead, they think that what makes a morality
justifiable is its positive contribution to human (and perhaps non-human) beings.
Utilitarianism is based on the fact that pleasure and happiness are valuable while pain and suffering
are naturally not valuable. Also anything else has value only in its happy or positive outcomes (i.e.
"instrumental", or as means to an end). This focus on happiness or pleasure as the ultimate end of
moral decisions, makes it a type of Hedonism (sometimes known as Hedonistic Utilitarianism).
Utilitarians support equality through equal consideration of interests, and they reject any arbitrary
isolations such as to who is worthy of concern and who is not, and any form of discrimination
between individuals. However, utilitarianism agree to the idea of declining marginal utility, which
recognizes that the same thing furthers the interests of a well-off individual to a lesser degree than
it would the interests of a less well-off individual.
3.1 KINDS OF UTILITARIANISM
There are three main types of utilitarianism. Act utilitarianism, Rule utilitarianism and Preference
utilitarianism.
3.1.1 ACT UTILITARIANISM
According to (Tavani, 2004), An act, X, is morally permissible if the consequences produced by
doing X result in the greatest good for the greatest number of persons affected by X.
Act Utilitarianism deals with the outcomes of individual actions. In this case, the greatest good is
done for the greatest number. Act Utilitarians believe that whenever we are deciding what to do,
we should perform the action that will create the greatest net utility. In their view, the principle of
utility—do whatever will produce the best overall results—should be applied on a case by case
basis. The right action in any situation is the one that yields more utility (i.e. creates more wellbeing) than other available actions.
3.1.2
RULE UTILITARIANISM
These are absolute rules established by society to allow greatest good to the greatest number.
Example: “Do not kill”. Rule Utilitarians adopt a two-part view that stresses the importance of
moral rules. According to rule utilitarianism,
o
Specific action is morally justified if it conforms to a justified moral rule.
o
Moral rule is justified if its inclusion into our moral code would create more utility
than other possible rules (or no rule at all).
According to this perspective, we should judge the morality of individual actions by reference to
general moral rules, and we should judge particular moral rules by seeing whether their acceptance
into our moral code would produce more well-being than other possible rules.
3.1.3 PREFERENCE UTILITARIANISM
Preference utilitarianism states that you should act in way that the person involved prefers, unless
that person is outweighed by others.
3.2
GENERAL CHARACTERISTICS OF UTILITARIANISM
There are five characteristics that effectively describe the utilitarianism theory. These include;
Consequentialism, Welfarism, Individualism, aggregation and maximization.
3.2.1 CONSEQUENTIALISM
This is the view that, the good or bad of an action depends entirely on the outcomes or
consequences of that act. This is technically referred to as ‘Teleological’. For instance, if you tell
a lie, it will only be considered a bad or negative action if that lie has harmful or bad effects.
Otherwise, that lie will not be considered wrong.
This utilitarian feature is of the view that, an act could be considered right or wrong if the effects
of that act yields right or wrong consequences. For instance, there is a consequentialist claim that
an act is right only if the outcomes of that act is as good as any other alternative act. The means
is usually not considered so long as it results to a positive consequence. Consequentialism tends
to justify the means by probably right means.
3.2.2
WELFARISM
Welfarism goes with views that how good or bad the outcomes of an action is depends solely on
facts about well-being, or welfare. That is how much happiness is derived.
Thus, good deeds or actions are the ones that increase the happiness or well-being(Utility) of the
people. Welfarism believes that morality is concerned with the wellbeing of an individual. It is
strongly believed that the whole point of morality is to make people better. Also to say that a thing
brings about the wellbeing of an individual, it must be something in their own best interest in the
most basic sense. This utilitarianism characteristic claims that one situation is better than another
if it has a greater amount of wellbeing.
3.2.3 INDIVIDUALISM
Utilitarian individualism sees communal action only as a way of protecting self-interests.
Individualism traces the source of value to individual entities such as animals and persons. For
instance, the only objects of moral regard are persons and animals rather than tribes, nations,
organizations etc.
3.2.4 AGGREGATION
This sees the value if an actions as determined by aggregation of the values of the individuals
involved in that particular action. Utilitarian aggregation is of the view that well being(utility) of
different people can be accumulated into a total which describes the overall welfare of all people.
3.2.5 MAXIMIZATION
This goes with the view that the best course of action is what can produce maximum or highest
level of welfare or happiness. This means the worth of a particular affair should be made as great
as possible.
4
THE ETHICS SURVEILLANCE VERSUS PRIVACY
Article 18(1) of the 1992 constitution of Ghana states that that “every person has the right to own
property either alone or in association with others”. Furthermore, 18(2) states that “No person shall
be subjected to the interference with the privacy of his home, property, correspondence or
communication except in accordance with law and as may be necessary in free and democratic
society for the protection of health or morals, for the prevention of disorder or crime or for the
protection of the rights of freedom of others”. Same in the United States, the Fourth Amendment
right draws a balance between privacy of a person and state interference by stating that, “The right
of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
The above legislations enshrined in constitutions for many democracies around the world tends to
draw the balance between privacy and security. The nature and interpretation of these laws
indicated why privacy is not a natural right or absolute. In the sense that, if we were to have
absolute privacy to the things we do or have total control over, then it would be difficult to assess
how beneficial that will be for society. Government surveillance although has tendency for abuse
such as for political advantage or targeting of individuals perceived to be against government, the
main reason for such monitoring is to protect the interest of the state. In that regards, we look at
the balance between privacy and security in the context of the characteristics the utilitarianism
providing examples.
4.1 “ENEMIES OF THE STATE”, SURVEILLANCE INVESTIGATIVE WORK AT TEMA
HARBOUR
In the year 2011, ace investigator Anas Aremeyaw Anas conducted an investigation at the Tema
Harbour with the permission of the state, in this case, presidential accent. In the said investigation,
he planted surveillance cameras in several places at the Ghana port at Tema and was able to gather
a substantial amount of evidence that was used to prosecute and discipline corrupt officials. As a
result of his investigation, the state was able to save over Two hundred million cedis
($200,000,000).
In discussing the ethical implications of this action, we first look at the act. The whole idea
was conceived out of the fact that, the state was losing so much revenue at the Tema port due to
high corruption by officials. The state according to paternalism theory has the resources to carry
out any activity it deems fit in the interest of it citizens contracted someone to carry out this
investigation. In this case, the reason is one that will increase utility if it is proven that the state is
actually losing money through corruption. The consequences of such an act if successful will mean
that the state will benefit.
Considering the methodology, the investigator used, one might be tempted to apply some
communication surveillance laws that tends to say that, mounting surveillance cameras in a public
place would require notifying the public of such cameras available. Again, the other argument will
be that, the rights to privacy has been invaded. The notification of a person who is willing cause
harm to the state about processes being put in place to curb his actions will only make such a
person device other means of committing this act. Although, the person’s privacy is important and
sacred, it is only if what he does in his privacy is not of bad consequence that he is to be allowed
to enjoy his privacy. In theory, such surveillance such as wiretapping, cameras would require
authorization from a court or higher authorities. The question would be that could Anas have
gathered this evidence without invading into the privacy of these people as putting them on
cameras and showing them to the public? Privacy as defined as one space of control or
inaccessibility in this instance cannot be applied because the place, position or even duties
performed by these people are that which are assigned to them by the state. Hence, it is expected
that their individual actions would be one which benefits that state. The perception of corrupt
activities at the port which called for this investigation required “hard core” evidence as usually
used by the investigator and so the only means was to do surveillance through camera. The video
show widespread corruption with identified person transacting corrupt deals visually. As stated in
the article 18(2) of the Ghanaian constitution, there was reasonable evidence to call for this form
of invasion since the action by these people were detrimental to the utility of the state.
Considering the Evidence Act, 1975 (NRCD 323), Section 51 of the Act provides permissible
evidence, which says that
1. For the purpose of this Decree, "relevant evidence" means evidence, including evidence
relevant to the credibility of a witness or hearsay declarant, which makes the existence of
any fact that is of consequence to the determination of the action more or less probable
than it would be without the evidence.
2. All relevant evidence is admissible except as otherwise provided by any enactment.
3. No evidence is admissible except relevant evidence.
Although, the law contravenes similar laws in the United Kingdom and the United States, in the
case of the Ghana, the method used by the investigator in the gathering of the information is
recognized in the evidence act such that if the information gathered is credible, and this case,
helped the state deal with corrupt officials and increase revenue at the ports, then the law will
accept it. So in this case, the act of monitoring or surveillance used by Anas would be in the best
interest of most state.
The final analysis of the investigations is its benefit to the society. Was it worth the exercise? The
benefits derived from the act was enormous in the sense that over two hundred million cedi was
recovered and for a nation like Ghana, such an amount could be used to do a lot a projects or
provide social support. The consequence of the act was good since it led to the saving money for
the state, the Welfarism of the state would be good since such monies could be used to provide
social amenities which will benefit all.
Applying Kantianism theory of ethics, it would be seen that, the people involved in the corrupt
deals were using the state as a means to an end. Again, the morality of their actions could not be
universalized since they were not acting from good morals. The other point is that, the act to
monitor activities at the port unknowingly to the people there, all things being equal, was a moral
act since it was done with good intentions. We could also universalize the action and methodology
in the light of Kant theory and we could conclude that if there is perception of corruption in every
institution of the state, then the act and methodology could be used since it will identify such
corrupt deeds and save the state resources. To lay credence to this, the investigator has done several
cases using the same methodology and act which has been beneficial to the state (Wikipedia, Anas
Aremayaw Anas, 2011).
4.2 ETHICAL ASSESSMENT OF THE INTERCEPTION OF POSTAL PACKAGE AND
TELECOMUNICATIONS BILL
Rules both written and conventional are what guides the morals of a society. Without rules, people
may act in ways that may affect society negatively. With the increasingly threat to the global world
vices such as money laundering, terrorism, drug trade and human trafficking, it has become
imperative for rules or laws governing national security to be reviewed or new ones introduced.
As stated earlier, surveillance is one key mechanism by which lots of information can be gathered,
processed so as to preempt and prevent crimes that will affect the utility of society.
During a recent National Security Committee briefing, the NSA and FBI indicated that over 50
terrorist plots have been foiled due the the surveillance programs (Wikipedia, List of unsuccessful
terrorist plots in the United States post-9/11, n.d.). Again, in 2004, the US Department of Justice
reported that, “under the Patriot Act, 310 terrorist suspects have been arrested and 179 of whom
have been convicted.
In the light of these successes, it is obvious that, the act of surveillance tends to provide the society with the
security and safety it deserves, we must not overlook the tendency for abuse all in the name of national
security. We must evaluate the rules to see if we all were to follow the rules the way they have been drafted,
we will all end up being happy.
There are several issues surrounding the adoption of the surveillance law in Ghana, that is,
Interception of Postal Package and Telecommunication Act (ITTPA). The state obligation to
provide security is met with strong objection by civil society. We will ethically access the bill in
its current form to see if it will lead to the utility of society.
As a society, because it is difficult to monitor everyone’s action to see the benefits and harms that
comes from individual’s action, it has become necessary for the state to set rules that it believes if
we all follow, will lead to a better society. Secondly, it is expected that we all act in ways that are
beneficial and not harmful to society.
To access, it we first look at the morality of the bill. The objective as stated is to secure information
that will help protect the nation from crimes such as terrorist, drug trade, armed robberies among
others. Considering the current trend of terrorist attacks, one would be minded of the fact that, if
there was anyway we could intercept communication or merchandise legally which are used to
conduct these heinous acts, such a method should be highly welcomed. The motive behind this bill
is a good one as according to Kant, the motive is one that can be universalized. If having a bill that
will allow the state to have a legal access to information that could help curb activities that may
disturb the utility of the state, then according to Kant’s categorical imperative one, it would be
ethical to do so. Considering the bill from the utilitarianism perspective, the consequence of the
implementation of the bill as expected will lead to the interception of information relevant to state
security to make decisions on national security. As stated earlier, Ghana recently was placed on
high terrorist alert by national security. If we were to assume, that such information which led to
this warning was gotten through the communication surveillance, then the state will have been
saved from a catastrophe. In this regard, one could conclude that, the bill or its purpose is ethical.
On the other hand, the fear of invading people private lives and to what extent state security
apparatus can monitor is one that needs to be taken into consideration. The type of information,
who that information is being collected from and why that information is being collected is one
that should be considered in the legal framework that guides surveillance. The weight of security
seems to trump that of privacy as your personal happiness in a long way will be determined if you
have personal physical security. For example, if there was a terrorist attack in some shopping malls
in Ghana, one would be skeptical or even afraid of going to a shopping mall because, there will be
a feeling that it is an easy target for terrorist and that it may not be safe. Hence, the physical survival
is prerequisite for the enjoyment of other values such as privacy and security.
5
CONCLUSION
Increased technological innovations in the way people connect provides the society with several
issues such as how to balance our privacy and how the state needs to protect us from harms inherent
in the technological age. According to (Rue, 2013), Undue interference with individual’s privacy
can both directly and indirectly limit the free development and exchange of ideas. He intimates
that the restrictions of anonymity in communications, for example, have an evident chilling effect
on victims of all forms of violence and abuse, who may be reluctant to report for fear of double
victimization. These concerns are very relevant in a way that; it brings the need for us to situate
these concerns in an ethical manner. Once we have been able to prove that, it is ethical for state to
pursue it surveillance activities, what has become necessary is for us to draw a balance between
the right to privacy and security. Lack of judicial oversight, National security exceptions,
unregulated access to communication data, extra-territorial application of surveillance laws, extralegal surveillance, mandatory data retention and restrictions on encryption and key disclosure laws
are all concerns on national legal standard. There will always been the need to balance the right to
privacy and security. The state needs to adapt to the changing security needs and whiles doing so,
it should be guided by very strong legislation protecting civil liberties.
Ghana would need to quickly pass the Right to Information Bill, which is one that will make it
possible for the citizens to know what information is being collected and if such information is
collected legally. The United States balances the surveillance laws with the Freedom of
Information Act, FOIA. been the need to balance the right to privacy and security.
The state needs to adapt to the changing security needs and whiles doing so, it
should be guided by very strong legislation protecting civil liberties.
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