Although he doesn’t like the wiretapping law, Cayman Islands Premier Alden McLaughlin said “rather than engaging in another long battle with the U.K.,” his government will go along with regulations that allow for expanded telecommunications surveillance capabilities for police.
Mr. McLaughlin’s remarks Tuesday followed several weeks of intense debate since the Caymanian Compass revealed that the government will require local telecommunications companies to provide “legal interception facilities” to the Royal Cayman Islands Police Service. The law is part of regulations to the Information and Communications Technology Authority Law.
The police service paid some $1.2 million for surveillance equipment used to intercept communications, but it needs to ensure its equipment can conect to and properly function with the service providers’ upgraded technology, according to government sources familiar with the issue.
The U.K. foreign office has long maintained the operational capability to wiretap phones. It was not until 2003 that a formalized process was set up by which the Cayman Islands governor could issue warrants to approve such activities by police.
Mr. McLaughlin was the legislator at the time who made a motion to change the law so that warrants would be issued by a judge rather than by the governor.
“In the end, the U.K. had their way,” he said. “It’s either I decide I want a major war over this particular issue, or I go down a route that is more likely to achieve some real success.”
“[The proposal] is not perfect at all, but I see far more sense and purpose in trying to get proper oversight which will limit the opportunity and possibility of any abuse, rather than engaging in another long battle with the U.K., which we’re not going to win,” the premier said. “I and the government don’t want to be distracted by that at this stage.”
Mr. McLaughlin said proposed regulations to the ICTA Law would restructure – to some extent – the independent oversight committee that will review wiretapping warrants issued by Cayman’s governor. Those revisions would mandate that a serving judge be appointed to the committee, he said.
“We are working to put together new regulations which establish this oversight committee, the constitution of the oversight committee, to find a way to give as much information about what’s actually happening as possible without compromising the whole process.
“For instance, announcing on a regular basis how many of these warrants have actually been issued. That’s the plan.”
The Caymanian Compass last year filed an open records request on warrants issued but was denied access on the basis that the records would reveal information about law enforcement capabilities and tactics.
Since then, the newspaper has revealed that the technology available to the police at the time did not provide the capbility of “listening in” on phone calls.
“The police don’t have the [new technology] operational yet,” Premier McLaughlin said. “My aim is to get the oversight committee up and running in advance, or at least by the time this process [referring to surveillance activities] actually resumes. This process was occurring for a number of years before the phones went digital and they lost the capacity.”
Regulations attached to the ICTA Law, approved by Cabinet in August 2011, 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 via telephone, post, email and text messages – must be authorized by a warrant issued by the governor. The warrant would have to be addressed to the RCIPS commissioner, who would then authorize a police service employee to execute it.
Currently, there is no judicial review of warrants prior to their being issued. However, any information uncovered via the use of such surveillance would not be available for use in court.
Under the regulations, the governor needs a specific reason for issuing a telecom interception warrant. Those 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.
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.”
It is not known whether, under any new proposed regulations, local telecommunications companies would have to be informed when the RCIPS engages in such investigative activity.
Premier McLaughlin said it is his understanding that any such use of telecommunications interceptions would be limited in scope.
“They’re going to be targeted numbers; it’s not a case where they can access thousands of phones, not even hundreds,” he said. “They’ve got to identify what the number is and who the target is and why it is this is being required.”