Bush: Give judges oversight over wiretapping

A democratic system of government operates in a manner which is different from totalitarian and dictatorial systems. Democracies have certain characteristics which include governance systems which abide by the rule of law, are transparent and in which the liberty of the citizens are protected from unwarranted search and seizure and the tyranny of the government of the day. The creators of the systems had experienced the havoc and injustice which had been metered out to the majority of society by those in power. The lack of restraints and the separation of powers, had led to revolutions across Europe and elsewhere and a new order of the day which protected citizens from governments was necessary. Even today in certain areas of the world which have not adopted proper restraints on the ruling class, incorporated the rule of law and mechanisms which are transparent and placed limits on those who seek to regulate and rule the life of the majority of society are being subjected to similar revolutions from the majority of their societies. These modern revolutions are even more violent than those in the past.  

The spying on citizens and the gathering of information through the vast variety of information, media and technology, which exist today impinges on the freedom guaranteed to citizens and should only be used in very sparing circumstances and in a manner in which permission so to do is given by an impartial tribunal such as the courts. 

The Information and Communications Technology Authority Law (2011 Revision) makes it a criminal offence to intercept or alter telecommunication messages except in certain circumstances, one of them being that a warrant was issued or that an order was issued by the governor permitting the interception. The law provides very limited circumstances pursuant to which messages may be interrupted. Section 97 permits the Cabinet to make regulations which allow interception to facilitate the investigation and the bringing of criminal proceedings.  

By the Information and Communications Technology Authority (Interception of Telecommunication Messages) Regulations, 2011, the Cabinet passed regulations which allowed the Governor to issue a warrant in limited circumstances being  

in the interests of national security; 

for purposes of preventing or detecting serious crime; 

to avert an imminent threat to human life; 

in circumstances coming within the scope of international mutual assistance agreements; or 

to safeguard the economic well being of the Islands.  

The governor must be satisfied that interception of the message is proportionate to the end sought to be achieved by the interception of the message and that the information sought could not be achieved by other less intrusive means. The warrant issued must contain very specific information: 

the facts constituting the grounds for requesting the warrant; 

details of the person or premises, if known, to which the request relates and how that person or premises are relevant to the request; 

a description of the messages to be intercepted; 

details of the communications service provider;  

supporting evidence of the urgency;  

an assurance that all material intercepted would be handled in accordance with the safeguards established by the government or the Royal Cayman Islands Police Service.  

The purpose of this section is to limit the governor’s powers and to ensure that those applying for the warrant, normally the police, set out in affidavit form the facts and circumstances necessary to meet the requirements set out in the law for a very unusual and intrusive interception into the rights and freedoms of a citizen. 

The law goes on to provide for the appointment of an audit committee by the Governor in Cabinet which committee has five members who should independently review and conduct audits of the requests. No such committee has ever been appointed despite the law which exists.  

At the time this regulation was passed, it was my view that the power to issue warrants should be a judicial power only and that the relationship which has been established by the new constitution that the governor is responsible for the police and the commissioner of police answers to the governor and in fact, works for the governor, creates a relationship which is not arms length and in which there is no independent body or person reviewing the requests for the warrants. This was a request which was not approved by the Foreign & Commonwealth Office for reasons which now appear obvious to me. 

It is my view that only senior members of the judiciary, i.e members of the Grand Court, should be empowered to issue warrants for the interception of telecommunications in any form whatsoever and except in cases of emergency that the application should be supported by an affidavit setting out the circumstances and the need for the warrant, and that these affidavits should be maintained and available to the persons whose information was intercepted at an appropriate time.  

That warrantless wire tapping of any telecommunication or information should not be permitted and it is doubtful whether such is permissible under the present regulations.  

The relationship which has been constitutionally established between the governor and the commissioner of police impinges on the normal good governance, transparency, separation of powers, and other rules which are a part of the foundation of a democratic society. The public cannot be adequately protected from abuses to their guaranteed privacy which is provided for in the Constitution. 

For these reasons, the present regulations should be repealed and replaced forthwith with regulations which comply with normal rule of law provisions and that the judges of the Grand Court as independent persons should be the only persons who can impinge upon the liberty of the citizens, and only in exceptional circumstances. History has shown that a society which surrenders its freedoms is one which is doomed to suffer the abuse of those in charge and will ultimately fail. 

 

McKeeva Bush, OBE 
Leader of the Opposition 

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