The United Kingdom’s representative in the Cayman Islands will be responsible for the issuance of telecommunications interception warrants, Overseas Territories Minister Mark Simmonds emphasized Tuesday evening.
His comments follow revelations that the Cayman Islands government is seeking more changes to regulations governing the intercepts of private phone conversations, emails, mail and other data. The changes would essentially force Cayman Islands telecommunications companies to provide the police service with a direct “plug-in” to their data networks.
The Interception of Telecommunications Regulations, 2011, create a process by which the police commissioner submits requests for a search warrant to the governor for approval in cases where covert retrieval of communications data is considered necessary. Any information obtained cannot be used by prosecutors in court, but it can be used to further police investigations.
There is no requirement for judicial review of the warrants.
“The reason why the governor will be responsible for warrants is because [the regulation] mirrors the process that we have in the United Kingdom, where the home secretary is responsible for signing off these warrants,” Minister Simmonds said. “The governor is, in effect, the home secretary in the constitutional arrangements that the U.K. [has] with the Cayman Islands.”
Mr. Simmonds said in a meeting with the media Tuesday at Camana Bay that the telecommunications interception process would not be abused.
“The proposals of intercept is in very exceptional circumstances as it relates to very serious crime or terrorism,” he said.
Under the regulations, the governor would need a specific reason for issuing a telecom interception warrant. However, those reasons include: the interests of national security, preventing or detecting serious crime, averting an imminent threat to human life, circumstances that fall within the scope of international mutual assistance agreements, or to safeguard the economic well-being of the Cayman Islands. Circumstances falling within the scope of international mutual assistance agreements could apply to criminal investigations, but they could also be applied to tax information exchange and other financial matters. In addition, “safeguarding the economic well-being of the Cayman Islands” is not clearly defined by the regulations. The regulations also state 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.”
Cayman Islands Chamber of Commerce President Chris Duggan said Tuesday that his organization has not taken a formal position on the communications interception regulations, but he is personally inclined to agree with Minister Simmonds.
“A lot of the information out there is that the police are going to be able to just arbitrarily decide on which conversations they’re going to listen to,” Mr. Duggan said. “That’s not the case. The case is that they’re going to have to have very specific evidence for why they need to listen to these calls and that needs to be sanctioned by the governor.”
According to an Oct. 15 memo from Information and Communications Technology Authority Managing Director David Archbold to various telecommunication companies on island: “Government has instructed the authority to provide drafting instructions for a new set of regulations under the ICTA Law which will mandate the provision by licensees [referring to the telecommunications companies] of legal interception facilities to the RCIPS.
“Although initially these regulations will apply only to mobile telephony service providers, it is anticipated that in the near to medium term, these obligations will be extended to all telephony service providers. The authority has already commenced consultations with LIME and Digicel, but would now like to extend these discussions to include all other telephony licenses.”
In a recent interview, Governor Helen Kilpatrick pointed out that an independent oversight committee – yet to be formed – will review each wiretapping warrant.
The committee is to include a local justice of the peace as chairman, a retired judge, magistrate or lawyer, the chief officer of the Ministry of Home Affairs, an information technology specialist who is employed by government, and a technical expert in communications interception who is from a law enforcement agency outside the Cayman Islands.
“[The panel] won’t be just looking at … whether the number of warrants or instances was proportionate, or whether allegations were sufficiently serious,” Governor Kilpatrick said. “They’ll also be looking at the technical aspects of it as well, to make sure that … there’s no illegitimate use of the interception equipment.” Police will retain the recorded information, which will be audited by the oversight committee, the governor said.
“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.”