Arrests of pro-Palestine activists in Jordan have increased amid the escalation of the Israeli war on Gaza.
During the detention of these activists, Jordanian authorities committed a series of violations, such as depriving citizens of their freedom of expression or breaching their privacy by searching their belongings and inspecting their phones “for security purposes.”
These violations took place despite guarantees in the Cybercrime Law and Personal Data Protection Law to protect citizen data and privacy.
Is it legal to conduct phone searches without a warrant, or is this practice subject to the same procedures as home and office searches?
This debate sparked courtroom controversy among lawyers and judges, prompting a long discussion on its legality under the Code of Criminal Procedures.
Lack of legal protection for phone searches
Jordanian authorities have conducted at least 1,500 arrests since October 7, 2023, with about 500 people still detained since March, according to Amnesty International.
Jordanian legislation has developed clear mechanisms for searching detainee data while safeguarding their privacy, but in practice, violaitons persist.
According to the lawyer and human rights activist Issa Al-Maraziq, violations against detainees, including unauthorized phone confiscation contradict the Jordanian Constitution and infringe upon human rights.
“If personal data is leaked by inspection authorities, the affected person may take criminal or legal action for personal data misuse, regardless of the entity that leaked it,” Al-Maraziq told SMEX.
“The search and surveillance of phones and social media pages must only occur after a Public Prosecutor issues a decision,” explained Al-Maraziq. He said that such acts can be used for investigation to establish a link between the defendant and the crime they are accused of.
Finally, Al-Mazariq urges that authorities create legal guidelines for searching electronic devices to protect citizens’ privacy, similar to how they addressed new crimes like “online indecent assault” that were not covered by existing laws.
In this case for example, a new term was introduced to encompass a new type of crime.
Article 296 of the Jordanian Penal Code on “online indecent assault” stipulates that violent indecent assault or threats should be punished by forced labor for a duration of no less than four years.
Article 15 of the Cybercrime Law is also applicable in this case.
Jordanian authorities violate the constitution
Omar (a pseudonym), a student at the University of Jordan, was arrested without any legal justification based on the directives of the Preventive Security Office.
According to defense attorney Malik Tahrawi, he was accused of being invited, through his personal Facebook account, to take part in “illegal” gatherings in solidarity with Gaza.
After Omar’s arrest, his phone was searched, and a report was drafted regarding the phone’s content, without the detainee’s consent nor permission from the Public Prosecution, according to Tahrawi.
Louay Obeidat, a lawyer who is member of the Bar Association’s Freedom Committee, confirmed Tahrawi’s statements, citing a non-warranted phone search case he is working on at the Court of Cassation.
“I filed an appeal to the court, but until now, no phone search has been recorded as a crime at court. We are still trying to prove that this is illegal.”
As a piece of advice, Obeidat encourages detainees not to hand over their phones to the judicial police without a warrant, or to simply present to the authorities without their phones.
Article 7 (2) of the Jordanian Constitution stipulates that “personal freedom shall be protected, and that any infringement of the rights and public freedoms or sanctity of private life of Jordanians is a crime punishable by law.”
How, then, can inspecting phones, which contain details about people’s personal life, not be considered a violation of the Constitution?
Khaled Khleifat, a lawyer specializing in media laws and legislation, shares Al-Maraziq’s viewpoint.
He explained that any individual has the right to file a complaint if the inspection crosses the line, and if any data retrieved during investigation is divulged. He also emphasized that no data should be accessed, whether private or public, unless necessary.
Khleifat also pointed out that the actions taken against protesters during the war on Gaza, such as phone searches and tampering with personal information and data, make the inspection process invalid.
In some cases where no warrant is issued, and if the judicial police claim that there is motive to commit a crime using the phone, they can search the device to help catch the suspect red-handed (Flagrante Delicto).
This practice builds on Article 28 of the Code of Criminal Procedure, which stipulates that “A Flagrante Delicto crime is a crime which had been witnessed by somebody during its commission or immediately after.”
Clause (2) of Article 28 also states that “other crimes shall be considered as Flagrante Delicto crimes such as crimes where the perpetrator/s is caught due to peoples’ screams shortly after the commission of the crime or when such perpetrators are caught carrying things or weapons or documents which lead to believe that they are the perpetrators of such crime. This has to be done within the first twenty-four hours which follow the commission of the crime.”
Khleifat points out the possibility of committing several “crimes” using phones, such as secretly capturing photos or recording audio, committing fraud, or engaging in financial theft. In such cases, the phone is considered a crime tool and will be confiscated and inspected.
Article 32 (2) of the Jordanian Cybercrime Law further specifies that judicial police officers may inspect and search devices, tools, software, operating systems, information networks, and other means suspected to have been used in crimes. This action requires permission from the Public Prosecutor or court, and must consider the rights of the defendant along with the conditions and provisions outlined in relevant legislation.
Khleifat emphasizes that Articles 21 and 22 of the Personal Data Protection Law in Jordan punish those who violate the provisions of the Law, noting that Article 22 does not exempt any party, including the judicial police, from penalty in case of data misuse.
Balancing national security and safeguarding privacy
According to former Minister of Digital Economy and Entrepreneurship Ahmad Hanandeh, Jordan is one of the “advanced countries regionally and globally in providing internet access to individuals,” with an access rate exceeding the global average.
For Omar Al Arabiyat, a technology and information expert, the Personal Data Protection Law in Jordan fails to provide exceptions for cases involving national security, rights, and criminal cases.
This is why Arabiyat emphasizes the need for the “comprehensive application of personal data protection principles, applying equally to individuals, companies, and the judiciary.”
Arabiyat argues that the law does not adequately address aspects related to national security practices, individual rights, and criminal issues. Additionally, he suggests that there should be some provisions specifically for cases involving national security breaches, with clear guidelines to prevent potential misuse of exceptions.
Omar Al-Naber, head of the Economic Committee in parliament, disagrees with Arabiyat.
“The Personal Data Protection Law was enacted to protect the personal data of individuals from information technology and communications companies, not from the state,” Al-Naber told SMEX in an interview.
Al-Naber considers that “national security is protected in several laws, including the Data Protection Law, as there is a security services representative in the Data Council.”
The Personal Data Protection Law is essential to promote national security, as it guarantees the non-violation of privacy even to protect national security.
Al-Maraziq explained that balancing national security with personal freedoms requires policies that protect security without infringing on individual rights. The challenge is that perspectives on these values vary from person to person.
Many questions persist about the Jordanian Data Protection Law, with some suggesting that the original version was more consistent, particularly concerning the Data Protection Council, before the amendments.
Article 16 (A) of the Data Protection Law requires that “a Council referred to as the ‘Personal Data Protection Council’ be formed, chaired by the Minister and composed of different members assuming various roles: The Information Commissioner as the Vice-Chair, the General Commissioner for Human Rights, the President of the National Cyber Security Center, a representative from the Central Bank of Jordan, two representatives from security agencies appointed by the directors of those agencies at the request of the Minister, four experienced and specialized individuals appointed by the Council of Ministers including one representative of each of the Telecommunications, Banking, and Information Technology sectors.
The organization of the Data Protection Council is quite controversial, since the majority of its members are from the executive branch.
Some believe that this would hinder accountability of government agencies in case of data violation. This is crucial since government agencies are the most involved in data collection and processing.
Such a structural organization violates international data protection standards that emphasize independence as a requisite for the Council to fulfill its role and apply best practices.
The Code of Criminal Procedure in Jordan contradicts recently-enacted data protection laws, such as the Personal Data Protection Law and the Cybercrime Law.
This further complicates the legal scene, which is becoming increasingly important worldwide. In Jordan, where internet usage has increased from 15.6% in 2007 to 90.5% in 2022, well above the global average of 66.3%, this issue is as relevant as ever.
Main Image from AFP
