“Tapping is the activity of installing equipment or additional device to the telecommunication network for the purpose of obtaining information through illegal methods.”

We had been asked by a client, “If we are tracing someone else’s phone, is it considered as breaking the law?” The next question is, “Is tracing someone else’s phone deemed as a tapping?”

Before answering this question, we need to now the definition of tapping under the applicable law. Under Law No. 36 of 1999 concerning Telecommunication (Law No. 36/1999) there is no definition of tapping in the general provision. However, in its eludication, we can find the definition of tapping under Eludication to Article 40 of Law No. 36/1999 which clearly stated:

“Meant by tapping in this article is the activity of installing additional devices or equipment to the telecommunication network for the purpose of obtaining information through illegal methods….”

From the above explanation, we can understand that tapping is an activity to obtain information through illegal methods. It is important to understand, because Law No. 36/1999 clearly prohibits tapping through telecommunication in any kind (Article 40). Criminal sanction for tapping is (fifteen) years of imprisonment.
It is expressly stated in Article 56 of Law No. 36/1999:

“Whosoever shall violate the provisions as referred to in Article 40 shall be penalized by imprisonment of at most 15 (fifteen) years.”

Thus, based on Law No. 36/1999, “tracing phone” is not deemed as tapping, because tapping needs additional equipment to be installed in the telecommunication network, for the purpose to obtain information.

However, to “trace phone” by accessing an electronic system without authority or by unlawful means are considered prohibited.

It is in accordance with Law No. 11 of 2008 concerning Information and Electronic Transaction (Law No. 11/2008), as amended by the Law No. 19 of 2016 concerning Amandment of Law No. 11 of 2008 concerning Information and Electronic Transaction (Law No. 19/2016), under Article 30:

1. Any person who knowingly and without authority or unlawfully accesses computers and/or electronic system of ther person in any manner whatsoever.
2. Any person who knowingly and without authority or unlawfully accesses computers and/or electronic system in any manner whatsoever with the intent to obtain electronic information and/or electronic records.
3. Any person who knowingly and without authority or unlawfully accesses computers and/or electronic sstems in any manner whatsoever by breaching, hacking into, trspassing into, or breaking through security system.

For this activity, there are various sanctions, from imprisonment of 6 (six) years to 8 (eight) years. The provisions can be found in Article 46 of Law No. 11/2008:

1. Any person who satisfies the elements as intended by Article 30 paragraph (1) shall be sentenced to imprisonment not exceeding 6 (six) years and/or a fine not exceeding Rp. 600.000.000 (six hundred million rupiah).
2. Any person who satisfies the elements as intended by Article 30 paragraph (2) shall be sentenced to imprisonment not exceeding 7 (seven) years and/or a fine not exceeding Rp. 700.000.000 (seven hundred million rupiah).
3. Any person who satisfies the elements as intended by Article 30 paragraph (3) shall be sentenced to imprisonment not exceeding 8 (eight) years and/or a fine not exceeding Rp. 800.000.000 (eight hundred million rupiah).

In connection with tapping, besides Law No. 36/1999, it is also prohibited.

The provision can be found under Article 31 paragraph (1) of Law No. 19/2016:

“Any person who knowingly and without authority or unlawfully carries out interception or tapping of Electronic Information and/or Electronic Records in certain Computers and/or Electronic Systems of other person.”

Although there is general provision in Law No. 19/2016, it does not include the definition of tapping. In Elucidation of Article 31 paragraph (1) of Law No. 19/2016, it can be found that interception or tapping means activities to listen, record, reroute, alter, block, and/or log transmission of nonpublic electronic information and/or electronic records, whether communications cable networks or wireless networks, such as electromagnetic waves or frequency radio.

Criminal sanction for tapping or interception based on Article 47 of Law No. 11/2008 is:

“Any person who satisfies the elements as intended by Article 31 paragraph (1) or (2) shall be sentenced to imprisonment not exceeding 10 (ten) years and/or a fine not exceeding Rp. 800,000,000 (eight hundred million rupiah).”

Thus, we can see that the sanction for tapping under Law No. 11/2008 is lighter than Law No. 36/1999. Nevertheless, tapping is clearly prohibited by the Law, unless expressly stated.

The exception of criminal sanction is an act for law enforcement, conducted by authorized official such as police or prosecutor.

We can find the provision under Article 31 paragraph (3) Law No. 19/2016:

“Provision under paragraph (1) and (2) does not apply to the interception or tapping carried out in the scope of law enforcement at the request of the police, prosecutor’s office, or other law enforcement institution as stated by laws.”

Besides police and prosecutor, other institution who has the authority to wiretap under the Law is Komisi Pemberantasan Korupsi (KPK). According to Article 12 of Law No. 30 of 2002 concerning Komisi Pemberantasan Tindak Pidana Korupsi (Law No. 30/2002) stated that KPK has the authority to wiretap and record the conversation.

Thus, all tapping activities or accessing electronic system by any unlawful means for the purpose to obtain electronic information and/or electronic document, conducted by other than authorized officials and in the scope of law enforcement, will be considered as a crime and have criminal sanctions, whether imprisonment or fine.

We hope this article is useful.

 

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we can assist you in providing the best solution to the legal program of your business or your company’s.  You can contact us via bpl@smartlegal.id or +62821-1234-1235

Author :

Iskandar D.P., SH