Constitution Watch 2/2019 Internet Shutdown 19 January 2019 warrants authorising the “interception” of communications, and section 6(1) goes on to empower a Minister – we shall explain below who that might be – to issue a warrant in response to such an application. Sections 5, 6 and 7 of the Act make it clear that a warrant can only authorise the interception of communications, and “intercept” is defined in section 2 of the Act as meaning listening to, recording or copying electronic communications, or reading or copying communications sent by post. Interception does not therefore extend to stopping communications from being sent, or shutting down communication systems. Warrants, in other words, permit the Government to snoop but not to stop. Directives Section 6(2) of the Act states that where the Minister receives an application for a warrant, he may instead issue “any directive … not involving any interception or monitoring of communications”. Notices issued by some ISPs referred to “directives” ordering them to shut down services, which suggests that the Government relied on section 6(2) to close down the Internet. If the Government did so, it was wrong. The section cannot be construed as impliedly giving the Minister such a drastic power, a power far exceeding those the Act expressly gives him under a warrant – a power moreover which is not even hinted at in the long title of the Act. What section 6(2) obviously means is that if the Minister is asked for a warrant authorising the authorities to intercept – i.e. read, listen to, record or copy – someone’s communications, the Minister can instead issue a directive authorising a different, less intrusive, type of eavesdropping: for example, a directive ordering an ISP to disclose who the person has been communicating with, how often, and when. The Act certainly does not empower the Government to shut down the Internet or any part of it, and there is no other law that allows it to do so. Who is the Minister responsible for the Interception of Communications Act? The warrants and directives were apparently issued by the Minister of State for National Security in the President’s Office, but he was not the right person to issue them. The Act was originally assigned to the Minister of Transport and Communications, but the President has power under section 104(1) of the Constitution to assign it to some other Minister or even to reserve its administration to himself. In SI 212 of 2018 the President chose to reserve the administration of the Act to himself. Hence the word “Minister” must be read as “President” wherever it appears in the Act. Whatever else the Minister of State Security may be, he is not the President – or wasn’t at the time of writing, at least – and does not have authority to issue warrants and directives under the Act. Conclusion The inevitable conclusion is that the Government acted unlawfully in shutting down the Internet. In doing so it has wrought incalculable damage to the country. One