Neither the Cayman Islands nor United Kingdom government has properly justified the exclusion of the judiciary in the issuance of investigative warrants allowing local police to intercept phone calls, emails and other private communications, according to the Human Rights Commission.
The commission in a report issued Friday challenged statements by both Governor Helen Kilpatrick and U.K. Overseas Territories Minister Mark Simmonds, who have said the Cayman Islands Interception of Telecommunications Regulations, 2011, “mirror” U.K. legislation of the same ilk. Yet commission officials noted that “does not, in itself, explain why there is no judicial oversight” in the issuance of wiretap warrants and said, in any case, there were significant “safeguards” in the U.K. Regulation of Investigatory Powers Act that do not exist in the Cayman Islands legislation.
“Indeed, there are now concerns in the U.K. on this very point [referring to lack of initial judicial review of wiretap warrants, which are signed by the U.K. home secretary] and prior to forming a firm view on the matter, the Human Rights Commission would request that a properly reasoned justification be provided,” the commission’s report stated.
Two laws in the Cayman Islands allow police to intercept an individual’s communications following a request by the commissioner of police and the governor’s approval of a warrant for those purposes. The Terrorism Law, 2009, that allows evidence obtained in such telecommunications interceptions to be used in criminal prosecutions and the Information and Communications Technology Authority Law, 2011, which does not allow the intercepted information to be used in court.
Issues with the ICTA Law arose again recently when the Caymanian Compass revealed that the government was seeking to require telecommunications companies to allow police to directly access their data communications systems so officers could use newly purchased surveillance equipment in accordance with gubernatorial warrants.
The ICTA regulations allow a broader range of options for telecommunications interception. Those include safeguarding the economic well-being of the Cayman Islands, in addition to detecting crime and preventing threats to human life and safety.
Currently, if police were to use such interceptions facilities, there would be no power, other than the governor, overseeing how those intrusions occurred. A five-person audit committee that was supposed to be formed after Cabinet’s approval of the Interception of Telecommunications Regulations in 2011 has never materialized.
The Human Rights Commission expressed concern about this in a report to then-Governor Duncan Taylor two years ago. On Friday, the commission noted that the last it heard of any such committee being formed was in March 2012, when the deputy governor confirmed that the formation of the audit committee for telecom intercepts was in its “final stages.” It was indicated that the matter would go before Cabinet within 30 days of March 22, 2012.
“Over the past 18 months, the Human Rights Commission has made repeated enquiries regarding the status of the appointment [of audit committee] members, to no avail,” the report noted.
Premier Alden McLaughlin has since said he was advocating that the audit committee membership be changed to include a sitting member of the Cayman Islands judiciary. The committee is tasked to review the issuance of warrants for telecommunications interception at least twice a year and, according to Mr. McLaughlin, will release reports on the number of occasions the telecom interceptions are used by police.
“Without the [audit] committee, there was a substantial lack of structural oversight, making it impossible for the general public to be assured that the use of interception and communications data is properly authorized,” the Human Rights Commission stated in its report.
Mr. McLaughlin said earlier this month that the police still do not have the technological capability to perform telecommunications interception on digital data networks and said that the audit committee would be in place by the time law enforcement did acquire that power.
The Human Rights Commission also pointed out that Cayman’s National Security Council, which includes the premier and opposition leader, could at least theoretically be consulted by the governor prior to the issuance of telecom interception warrants. Mr. McLaughlin did not address that issue and said he did not wish to engage in a “war” with the U.K. over wiretapping that he felt Cayman could not win.
Overseas Territories Minister Simmonds was asked about Britain’s insistence on telecommunications interception warrants being issued by the U.K.-appointed governor during a recent visit to Cayman.
“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.
“The proposals of intercept is in very exceptional circumstances as it relates to very serious crime or terrorism,” he said.
In reality, the ICTA Law regulations allow for much broader reasons in issuing an interception warrant.
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, the concept of “safeguarding the economic well-being of the Cayman Islands” is not clearly defined by the regulations.
Moreover, the mirroring legislation in the U.K. – known as the Regulation of Investigatory Powers Act or RIPA – has safeguards that are not contemplated in the Cayman Islands law, according the Human Rights Commission.
For instance, the U.K. prime minister appoints an individual who has held high judicial office and who is independent of government to oversee the exercise of the British government’s power to issue spying warrants, the Human Rights Commission report stated. The commissioner inspects the agencies using the interception techniques and is given full access to all data regarding the warrants.
Reports from that individual to the prime minister are laid before the U.K. parliament for review periodically.
Also, the U.K. law creates a legal tribunal to which citizens can apply if they feel there has been any contravention in the warrant-issuing provisions of RIPA. If the U.K. is found to be in the wrong in such instances, the government must pay the person compensation.
The ICTA Law and regulations in Cayman are silent on what happens to the governor or commissioner of police if either individual errs in the issuance of telecommunications interception warrants.