This statement warns of information received by the Iraqi Observatory for Human Rights (IOHR) indicating that security bodies are moving to monitor Iraqi citizens' WhatsApp accounts without judicial warrants, in violation of Article 40 of the Constitution. IOHR calls for every surveillance measure to rest on a warrant from a competent judge, protecting all Iraqis.
The Iraqi Observatory for Human Rights (IOHR) said it has received information it considers credible indicating that security bodies are moving to monitor WhatsApp accounts belonging to Iraqi citizens without obtaining judicial warrants, warning that any such measure taken outside the judiciary violates the Iraqi Constitution and Iraq's international obligations.
IOHR explained that what troubles it about this information is that it does not concern any single group. Talk of the matter may have begun among journalists and activists, but surveillance conducted outside the law recognises no limits and stops nowhere. A WhatsApp account today is where an Iraqi speaks with his wife and children, sends his medical reports, and discusses his work, his debts and his family troubles. What is done today without judicial oversight to a journalist's account may be done tomorrow to the account of a civil servant, a shopkeeper, a student or a housewife, without anyone ever knowing.
IOHR said it is not accusing any particular body in this statement, nor declaring any particular incident proven, but that it considered it a duty to raise the alarm before the fact rather than after it.
IOHR warned that privacy is neither a luxury nor a secondary concern. A citizen who feels his phone is open to others changes the way he behaves: he hesitates before filing a complaint, stays silent about things he would have said, and gradually loses confidence in the institutions of the state. And such confidence, once lost, is hard to restore.
IOHR noted that Article 40 of the Iraqi Constitution guarantees the freedom of communications and of postal, telegraphic, telephone and electronic correspondence, and prohibits their monitoring, interception or disclosure except for legal and security necessity and by judicial decision. It said that this final phrase — "by judicial decision" — is not a formality to be set aside whenever need arises, but the very substance of the provision. IOHR also recalled Article 17 of the Constitution, which protects private life, and Article 17 of the International Covenant on Civil and Political Rights, to which Iraq is a party.
IOHR affirmed that the Iraqi judiciary is the sole authority empowered to rule on this matter. Despite all the pressures it has faced over recent years, the judiciary has remained the institution to which citizens turn when other doors close, and has on many occasions been the body that restored matters to the rule of law. It alone is able to strike the balance between the state's need for security — a legitimate need that no one disputes — and the citizen's right not to be placed under surveillance without cause.
IOHR stressed that everything in this file must pass through a judicial warrant. Any request to access conversations, data or accounts — whatever the requesting body, and however pressing its reasons may appear — must rest on a warrant issued by a competent judge: reasoned, limited in duration and scope, and open to challenge. It said that a judicial warrant is not an obstacle to the work of the security services but a protection for them, since it gives their work legal standing and shields their personnel from being held to account later on.
IOHR called on the Higher Judicial Council to affirm this principle and to examine any complaint submitted in this regard. It called on the government to issue binding instructions to all agencies prohibiting the monitoring of any citizen's communications outside the judiciary. And it urged the Council of Representatives to move swiftly to enact a personal data protection law, noting that Iraq still has no legislation governing the matter even though people's entire lives now reside on their phones.
IOHR further called on citizens generally to attend to the security of their accounts: enabling two-step verification, keeping applications updated, and treating unknown links with caution. These, it said, are simple measures that every phone user ought to know.
IOHR concluded its statement by saying that what is being asked is no more than what the Constitution already sets down: that an Iraqi be able to rest assured his phone will not be opened except by order of a judge.
