Who’s on your Phone?

Telephone tapping, e-mail and postal snooping are all legal in the Cayman Islands. What may surprise you is that those measures have been available to local law enforcement for nearly a decade. 

 If you’ve lived in the Cayman Islands since 2003, it is legally possible that your phone, e-mail or post messages could have been intercepted via legal state policy at anytime.  

And you wouldn’t have known a thing about it.  

According to officials with the Information and Communications Technology Authority, Cayman’s governor has always maintained the ability to issue communications interception warrants under his reserved powers in the Constitution.  

Controversial amendments to the country’s Information and Communications Technology Authority Law in 2003 simply made it legal for individuals to serve such warrants.  

Section 75 of the ICTA Law (2010 Revision) states that it is a crime for a person to intentionally intercept, alter or replicate, monitor or interrupt a message during its transmission. 

However, it is a defence under the law if that message was intercepted “in obedience to a warrant or order issued by the governor”.  

Section 97 of the ICTA Law gives Cabinet the ability to make regulations for the law, which covers the Interception of Telecommunications Messages regulations approved earlier this month.  

Former government minister Gilbert McLean said a set of newly drafted regulations will now provide a standard by which government can issue warrants for communications surveillance.  

“It’s a formalisation of what had been there all along,” McLean says. “What took place before is really anybody’s guess.”  

In 2003, local lawmakers objected to the wording contained in what is now section 75 of the ICTA Law. According to Hansard records from a 1 October, 2003 debate in the Legislative Assembly, then-Minister Linford Pierson said: “It is my view … that any interception of a telephone line should be done on the order of a judge of the Grand Court for various reasons.” 

However, that wording was never changed and the amendments to the law were eventually passed – partially because of the urgency at the time of opening Cayman’s telecommunications market to competition.  

Former government minister and current UCCI President Roy Bodden said it’s a concept he still does not support today.  

“If anything, my objections would be more vehement against it now, if it comes under the blanket of ‘well, it’s for peace and good order,’” Bodden says.  

Deputy Governor Donovan Ebanks said it remains within lawmakers’ power to change the ICTA Law if they wish.  

“Whenever the government wants to resume the battle they abandoned in 2003, they can resume it,” he said last week.  

 

Challenge unlikely 

Earlier this month, Cayman Islands Cabinet members approved regulations that are attached to the ICTA Law that allow “any person employed by the Royal Cayman Islands Police Service to intercept a message in relation to a matter or person” for the purposes of gathering intelligence. 

The interception of the message must be authorised by a warrant issued directly from Cayman’s governor. The warrant would have to be addressed to the RCIPS commissioner who can then authorise a police service employee to execute it.  

Under the regulations, known as the Information and Communications Technology Authority {Interception of Telecommunication Messages) Regulations, 2011, the governor would need a specific reason for issuing such a warrant. Those include: the interests of national security, preventing or detecting serious crime, averting an imminent threat to human life, for circumstances that fall within the scope of international mutual assistance agreements, or to safeguard the economic well-being of the Cayman Islands.  

The regulations also state that the governor must be “satisfied that the interception of the message is proportionate to the ends sought to be achieved by intercepting the message and the information sought to be obtained cannot be obtained by other less intrusive means”.  

Warrants issued by the governor must state the facts that constitute the grounds for issuing the document, details of the person or premises to which the request relates, a description of the messages to be intercepted, details of the communications service provider, and supporting evidence that the request is urgent – in cases where the application is said to be urgent.  

Urgent warrant applications can be issued verbally and only last up to 24 hours after issuance. Otherwise, all other applications to the governor must be made in writing.  

According to the Interception of Telecommunication Messages regulations, no evidence can be adduced or disclosure made for the purposes of any legal proceeding or proceeding of a Commission of Inquiry. That means intelligence gathered in the course of any communications interception activities cannot be used in a court or formal inquiry proceeding. An intercepted communication is defined as “any communication intercepted in the course of its transmission by means of a postal service or telecommunications system”.  

Also, there is no provision in the regulations for oversight of warrants by the courts. The regulations do establish an audit committee to periodically review the governor’s issuance of warrants under the regulations, but that review would occur only after the warrant is granted. 

“The new regulations do not give police a free hand in monitoring anyone’s communications,” a statement from the RCIPS read. “The regulations provide robust checks and balances.” 

 

Concerns 

He doesn’t oppose the new regulations in principle, but Opposition Leader Alden McLaughlin, an attorney, has concerns with the ‘robustness’ of the checks that will be carried out under the new regulations. .  

“There is no judicial oversight of this,” McLaughlin says. “There is this very cosy committee of two [referring to the governor and the police commissioner]. 

“There are justifiable reasons for police doing this, but we know that the UK doesn’t always act honourably.”  

In McLaughlin’s view, there are too much that is left vague under the new regulations for them to amount to a proper balance on the governor’s power.  

For example, one reason for the governor to issue a communications interception warrant would be to “safeguard the economic well-being of the Cayman Islands”.  

“This is something that the governor would not have any responsibility or remit for,” he says. “It is incongruous and bordering on the ridiculous actually.”  

If wiretapping, for instance, was authorised for this purpose, then McLaughlin argues that perhaps the manager of the Cayman Islands Monetary Authority or the director of tourism might be better suited to make the decision based on the economic well-being of the Islands.  

The opposition leader is also concerned that the directors of other law enforcement agencies like customs and immigration must go to the police to issue warrants. All such requests must be made through the commissioner of police and carried out by a police service employee.  

“Why does everything have to be routed through the governor and the commissioner of police?”  

The ICTA Law and accompanying regulations do not apply to the interception of messages on a telecommunication system provided by an employer to an employee. Many private companies already reserve the right to scan employee e-mails, phone records and text messages and the regulations do not interfere with that.  

Also, nothing in the regulations 
prevents the Cayman Islands prison service director from intercepting inmate communications for “the good order of the prison”, which is already allowed under the Prisons Law.  

Prisoners do maintain the right to communicate privately with their attorneys.  

 

Oversight  

The regulations approved by Cabinet create an appointed committee called the Interception of Communications Audit Committee, whose job will be to conduct audits of various interceptions carried out under warrants issued by the governor.  

The committee consists of five members including a local Justice of the Peace (to serve as chairperson), a retired judge, magistrate or lawyer, the chief officer of the government Portfolio of Internal and External Affairs, an IT specialist who is employed by government, and a technical expert in the area of communications interception who is from a law enforcement agency outside Cayman.  

“We tried to get the persons we believed you’d have the most confidence in,” said Portfolio Chief Officer Franz Manderson.  

The committee members serve “at the pleasure of” the Cayman Islands Cabinet.  

Cayman’s governor, who is appointed by the Queen of England, set the agenda for Cabinet which is made up of elected government ministers. The governor is also the only individual who is allowed to issue communications interception warrants under the new regulations.  

“There is a great deal of reliance placed on trust with [these regulations],” McLaughlin says.  

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