Various Wiretapping Regulations

Wiretapping is a crucial instrument for law enforcement and maintaining national security. Unfortunately, wiretapping remains a thorny issue in Indonesia. Rather than being regulated under a single, comprehensive legal framework, its provisions are scattered across various laws and regulations. As a result, wiretapping is often the subject of debate, creating ambiguity and potential for overlapping interpretations, both for law enforcement officials and the public. If wiretapping is carried out without adhering to applicable procedures and requirements, particularly those involving telecommunications operators, it could constitute a serious legal violation. This underscores the urgent need for more integrated, clear, and accountable regulations to ensure legal certainty and prevent abuse of authority in wiretapping practices in Indonesia. 

KPK's view 

The complexity of these wiretapping regulations has naturally drawn responses from various parties, including the Corruption Eradication Commission (KPK). KPK spokesperson Budi Prasetyo highlighted how the existing regulations sometimes conflict with the KPK's current working methods. For example, the KPK often conducts wiretapping during the initial investigation stage to gather preliminary evidence. This procedure is also periodically audited by the Supervisory Board. Therefore, if there is a restriction requiring wiretapping only to be conducted during the investigation stage, it could hamper the KPK's performance in eradicating corruption.

View the Attorney General's

Office About wiretapping, the Attorney General's Office (AGO) has actually taken steps regarding wiretapping. Through the Deputy Attorney General for Intelligence, the AGO recently signed a cooperation agreement with several telecommunications operators. The core of this cooperation is the exchange and utilization of data or information for law enforcement, including the installation of wiretapping devices and the provision of telecommunications recordings. The AGO's authority is based on Article 30B of Law Number 11 of 2021 concerning Amendments to Law Number 16 of 2004 concerning the Attorney General's Office of the Republic of Indonesia, which relates to the prosecutor's authority in the field of law enforcement intelligence. The Deputy Attorney General for Intelligence, Reda Manthovani, explained that the core function of the AGO's intelligence is the collection of data and information for analysis and use according to the organization's needs. The Head of the AGO's Legal Information Center, Harli Siregar, also emphasized that the wiretapping carried out by the AGO is purely for the context of law enforcement, not to violate public privacy. However, this step by the Attorney General's Office has still drawn criticism from several parties, especially regarding the potential threat to citizens' privacy rights, which are guaranteed in Article 28G paragraph (1) of the 1945 Constitution. 

Various Regulation

In fact, provisions regarding wiretapping are already widespread in many Indonesian laws. A research report by Puteri Hikmawati of the Research Center of the Expertise Agency of the Secretariat General of the Indonesian House of Representatives (DPR RI) revealed that Law No. 5 of 1997 concerning Psychotropics and Law No. 22 of 1997 concerning Narcotics were pioneers in regulating wiretapping as part of a special investigation process. Both laws stipulate wiretapping for a maximum of 30 days if there is a strong suspicion of drug-related crimes.

Furthermore, we can also find wiretapping regulations in Law Number 11 of 2008 (which was later amended by Law Number 19 of 2016 concerning Electronic Information and Transactions (ITE)). Here, interception or wiretapping is defined as the activity of listening to, recording, diverting, changing, inhibiting, and/or recording the transmission of Electronic Information and/or Electronic Documents that are not public. Furthermore, Law Number 17 of 2011 concerning State Intelligence also grants the State Intelligence Agency (BIN) the authority to wiretap for intelligence purposes.

What's interesting is how the procedures and provisions for wiretapping permits can vary across laws. Some explicitly require prior permission, while others don't. For example, according to the Psychotropics Law, wiretapping can be carried out upon written orders from the Chief of Police. Meanwhile, the Telecommunications Law stipulates that wiretapping can be carried out upon written requests from the Attorney General and/or the Chief of Police for certain crimes. On the other hand, Government Regulation in Lieu of Law No. 1 of 2002 concerning the Eradication of Criminal Acts of Terrorism, Law No. 21 of 2007 concerning the Eradication of Criminal Acts of Human Trafficking, and Law No. 35 of 2009 concerning Narcotics require wiretapping to be ordered by the Chief Justice of the District Court. Furthermore, Law No. 8 of 2010 concerning the Prevention and Eradication of Money Laundering stipulates that wiretapping must be carried out upon recommendations from the Financial Transaction Reports and Analysis Center (PPATK). Lastly, Law Number 18 of 2011 concerning Amendments to Law Number 22 of 2004 concerning the Judicial Commission states that wiretapping can be carried out based on a request from the Judicial Commission.

Thus, it is clear that wiretapping regulations in Indonesia remain scattered and unintegrated. This situation poses significant challenges to effective law enforcement while simultaneously protecting citizens' privacy rights.

Looking ahead, the big question that remains is whether the new Criminal Procedure Code ( KUHAP) will address wiretapping. How will the new KUHAP regulate it? Most importantly, will the new KUHAP become a single legal umbrella that unifies these scattered wiretapping regulations to create legal certainty and better protection? We'll wait and see.

*) Halimah Humayrah Tuanaya, Lecturer of Criminal Law, Faculty of Law, Pamulang University; Processed from various sources.

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