Opposition Leader McKeeva Bush, in a letter published in Monday’s Caymanian Compass (Page 4), argues that powers granted to the police under the Interception of Telecommunication Regulations “should only be used in very sparing circumstances and in a manner in which permission to do so is given by an impartial tribunal such as the courts.”
The regulations attached to the Information and Communications Technology Authority Law 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 – which can include any form of communication such as telephones, post, email, text messages and the like – must be authorized by a warrant issued directly by Cayman’s governor. The warrant would have to be addressed to the RCIPS commissioner, who can then authorize a police service employee to execute it.
There is no judicial review of the warrants prior to their issuance. However, any information uncovered via the use of such telephone tapping or email snooping methods would not be available for use in court.
Those regulations did not have to go before the full Legislative Assembly for a vote.
The former premier said that he was not in support of all provisions contained in the regulations at the time they were enacted during his administration.
“It was my view that the power to issue warrants should be a judicial power 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 viewing the requests for the warrants,” Mr. Bush said.
“This was a request which was not approved by the [U.K.] Foreign and Commonwealth Office for reasons which now appear obvious to me.”
Mr. Bush advocated that only members of the judiciary – specifically Grand Court judges – be allowed to issue wiretapping warrants, except in cases of emergency where police can issue an affidavit that can be maintained and provided to the person whose information was intercepted.
The opposition leader also said warrantless wiretapping should be made illegal and that it was “doubtful whether such is permissible under the present regulations.”
“In light of the abuses known to me … the normal good governance, transparency, separation of powers and rules which are part of the foundation of a democratic society cannot be adequately met and the public cannot be protected from arbitrary abuses to the interference of their guaranteed privacy provided for in the constitution.”
When the telecom interception regulations were first passed through Cabinet in 2011, then-Opposition Leader Alden McLaughlin was outspoken regarding his reservations to the plan. Mr. McLaughlin is now the premier of the Cayman Islands.
“There is a great deal of reliance placed on trust with [these regulations],” Mr. McLaughlin said in August 2011.
Mr. McLaughlin said at the time that he did not oppose the idea of telephone tapping or email snooping in principle, if it is for the purposes of protecting life or solving serious crime. However, in the now-premier’s view, there was too much left vague under the new regulations for them to act as a proper balance to the governor’s warrant-issuing 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 said. “It is incongruous and bordering on the ridiculous actually.”
If wiretapping was authorized for economic protection reasons, then Mr. 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. Mr. McLaughlin said he was also concerned that the directors of other law enforcement agencies such as customs and immigration must go to the police to issue warrants.
“Why does everything have to be routed through the governor and the commissioner of police?” he asked. Governor Helen Kilpatrick said during an interview with the Compass last week that she was comfortable with the checks and balances contained in the regulations.
“There will be system controls put in place, logs that [the committee] will be able to inspect,” she said. “I can’t go into the technical details, but it won’t be a question of just asking people; there’ll be evidence.
“If you’re not a serious criminal, then your information will not be looked at in any way. Unless you’re involved in very serious crime, you don’t have anything to be concerned about.”