Unwarranted Phone Seizure Violates Egypt’s Laws and Constitution

Authorities in Cairo and other Egyptian cities have reinstated the old tactic of randomly searching and confiscating personal devices on the streets, in public squares, and on metro stations. People are being stopped at check-points where they are forced to unlock their phones to be inspected. 

“The government usually implements this procedure during national occasions, such as the anniversary of the January Revolution, but it became more frequent after protests broke out in September 2019,” explained Hassan Al-Azhari, lawyer and legal researcher at Masaar

One reason for reinstating this measure is the calls for protests on November 11 in conjunction with the UN Climate Change Conference (COP27), scheduled to take place from 8-18 November in Egypt’s Sharm El Sheikh.

Monitoring political expression and freedom of opinion is the primary purpose behind this intrusive practice. Egyptian activist Amro Magdy explained that in some cases, the officer searches through social media apps for any hint of political content. One of the people who was stopped was even surprised by the military’s advanced ability to search the phone: an officer asked him to restore the Facebook app that he had hidden, which according to Magdy, “makes things much more complicated.” 

Despite its recurrence, such a procedure is neither legal nor legitimate. “It is in stark violation to the right to privacy, a right guaranteed by the Egyptian constitution, specifically under Article 57 (issued in 2014 and updated in 2019),” according to Al-Azhari. The law states that: Private life is inviolable, safeguarded and may not be infringed upon. Postal, telegraph, e-correspondence, telephone calls and any other means of communications are inviolable and their confidentiality is guaranteed.”

Accordingly, no security or regulatory entity is allowed to enter someone’s house or seize their devices and inspect messages without a judicial order and a specific justification. According to Al-Azhari, for a search procedure to be legal, a number of factors must be considered, including a valid judicial order justified by a clear cause and preceded by a thorough investigation from the entity issuing the order; and a search warrant from the Public Prosecution. 

Setting up sudden and random security checkpoints to inspect devices, however, is only permissible in exceptional circumstances, such as cases of in flagrante delicto–or when a criminal is caught red-handed. In those cases, judicial authorities may seek evidence for a crime, as Al-Azhari explains, “undermining the validity of the procedure.”

Unfortunately, fear of the search procedure leads many not to ask for the judicial warrant. They end up allowing their phones to be searched and inspected, in which case authorities may find incriminating material. “This could be used against someone who confesses to a crime when confronted with the evidence,” warned Al-Azhari, adding that, “According to some judges, a confession outweighs procedural errors.”

A contrasting legal perspective sees that the invalidity of the procedure is enough to nullify the consequent investigation, considering its legitimate basis. For instance, device search and confiscation without a judicial order violates Egypt’s Anti-Cyber and Information Technology Crimes law No. 175  of 2018, known as the Cyber-Crime Law. The law permits the seizure and inspection of devices only if a crime has already been committed. It also requires the issuance of a substantiated order by the relevant investigative body (i.e. the judiciary).

Article 6 of the law specifies that the investigation authority issues the causative order “for a period not exceeding 30 days–renewable once–and only when it serves to reveal the truth behind carrying out a crime punishable under the provisions of this law.”

Authorities in Egypt must end the haphazard and illegal practice of randomly searching people’s phones, which violates the Egyptian constitution and contradicts international treaties signed by Cairo. It is also necessary for the judicial authorities to declare that these measures are illegitimate, especially when used to intimidate people and prevent them from their legal right to freedom of opinion and speech. 

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