During the recent back-and-forth over
government’s new phone tapping and e-mail snooping rules, we feel a key point
has been overlooked:
Cayman’s governor could have authorised
communications interception actions any time he wanted under the country’s current
or former Constitution.
All government’s amendments to the
Information and Communications Technology Authority Law in 2003 did was make it
legal for other people to act on warrants for communications interception
issued by the governor. Essentially, the British government’s power to
intercept communications here has existed for some time.
The creation of regulations setting out how
phone tapping or mail searching will be carried out puts rules in place for an
already established law enforcement tool. Surely, the regulations approved
earlier this month by Cabinet must be seen as a positive step, given that the
previous situation would have allowed warrants to be issued by the governor
without any rules or oversight at all.
The communications interception regulations
set up a (relatively) specific set of circumstances under which communication
interception warrants can be issued.
They also create an oversight board to
question the governor’s decisions.
What kind of “teeth” this board will have
regarding enforcement if the governor goes astray is still in question, but at
least someone is there to review the process.
The gaping hole we find in the new
regulations is that no one is there to review gubernatorial warrants before
they are issued. This fatal flaw in the legislation must be addressed by
setting a member of the judiciary to watch over communications interception
requests from the governor/police commissioner.
The mere fact that the regulations do not
address what happens prior to such warrants being ordered shows, in our view, a
shocking lack of confidence in the local judiciary.
If the governor’s office does not have this
confidence, our country has a lot bigger problems than police tapping cell