New surveillance rules make it illegal to disclose warrants

Surveillance can now be used in court

New regulatory changes make it illegal for companies and others to disclose when they receive a warrant to intercept telecommunications messages.

The changes also clarify when the governor can issue a warrant for electronic surveillance and gives judges the ability to allow evidence from wiretaps or other interception into court.

Amendments to the Information and Communications Technology Authority Regulations on intercepting telecommunications, published in the Cayman Islands Gazette on Friday, tighten law enforcement surveillance rules and require police to destroy the records after they are no longer needed for criminal investigation and prosecution.

ICTA declined to comment on the regulatory changes but said the regulator plans to release a joint press statement with the Ministry of Home Affairs and the Royal Cayman Islands Police Service to clarify what the new regulations mean. That statement had not been issued as of press time Wednesday. The Governor’s Office declined to comment.

Tightening warrant rules

A one-word change to the surveillance rules curtails the governor’s ability to issue warrants for electronic surveillance. By inserting the word “only” into “The Governor may only issue a warrant,” the governor is now restricted to issuing warrants for five reasons.

To issue a warrant, the governor must show the surveillance is, as spelled out in the regulations, “in the interest of national security; for the purpose of preventing or detecting serious crime; to avert an immediate threat to human life” based on international agreements for mutual assistance; or “to safeguard the economic well-being of the Islands.”

The new rules clarify what can be considered a “serious crime.” The regulations describe “serious crime” as a crime that for which an adult could be expected to receive a prison sentence of three years or more, involves violence or “substantial financial gain” or “is conducted by a large number of people in pursuit of a common purpose,” which could include organized crime and similar gang activity.

Use in court

Evidence from wiretaps and other types of communications interception can now be used in criminal prosecutions with the permission of a judge. Previously, the material collected by police was not permitted in court and did not receive any oversight from a judge.

The new rules allow the evidence gathered through surveillance to be used by prosecutors while building a case, and then can be used in a criminal prosecution if a judge finds “that the exceptional circumstances of the case make the disclosure essential in the interest of justice.” A judge can also order that the evidence from wiretaps or other intercepted communications be made available only to the judge.

Illegal disclosure

The new rules also make it illegal for someone who receives a warrant, for example, a telephone company or Internet service provider, to tell anyone about the existence of the warrant or what is in it. There are exceptions to the disclosure rule, primarily to get legal advice or to share the warrant with other people who need to know about the surveillance in order to help law enforcement get access to the information. Punishments for violating the new law can include summary convictions with fines up to $10,000 and up to six months in jail or both, or if convicted on indictment someone can face up to two years in prison and a fine up to $20,000.

Destruction of records

The new regulations require the police commissioner to make sure arrangements are in place to destroy any records of intercepted communications. The amendments say the information will be destroyed “as soon as the intercepted communication is no longer needed.”