The audit committee that is supposed to provide oversight for surveillance and wiretap warrants has never been formed, according to the Ministry of Home Affairs.
Telecom regulations give the police, customs and immigration the ability to apply to the governor of the Cayman Islands for warrants to intercept telecommunications without judicial oversight. Approved in 2011, changes to the law, published in the Cayman Islands Gazette last month, will restrict when the governor can issue warrants for wiretaps and similar surveillance.
The Cayman Compass asked the governor’s office and the Royal Cayman Islands Police Service for the number of times these types of warrants have been applied for and used. The governor’s office denied a Freedom of Information request seeking data on how many warrants have been issued, and the police have not responded to the newspaper’s FOI request or questions seeking more general comments.
Through a spokeswoman, the police said, “We will not comment on issues that could compromise national security or the conduct of lawful investigations.”
The regulations outline that an “Interception of Communication Audit Committee” provides oversight for the program. The function of that committee “shall be to conduct audits of interceptions carried out under these Regulations.” The regulations say the committee will examine “all interception equipment and data records at least once every six months to determine whether interceptions were conducted in accordance with these Regulations.”
An email response to a Freedom of Information request relating to the committee stated, “We must inform you that no records exist as the ‘Interception of Communication Audit Committee’ has not yet been formed.”
Under the law, the governor gives the final sign-off on requests for surveillance. Such requests are forwarded by the commissioner of police to the governor from the police service, immigration or customs.
The issue of governor-approved surveillance was the subject of a Human Rights Commission review shortly after the regulations were approved in 2011. A Human Rights Commission report in 2012 stated, “Telecommunication message interception carries the potential for human rights infringements,” and indicated that it considered the Audit Committee to be one of the most important checks and balances in the process.
The new changes to the Information and Communications Technology Authority (Interception of Telecommunication Messages) Regulations will tighten the rules on when the governor can issue a warrant for law enforcement surveillance.
The previous regulations said the governor “may” issue a warrant “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 say the governor can issue a warrant only for those five reasons.
The amended regulations for the first time gives prosecutors the ability to use evidence collected with governor-issued warrants in court. If prosecutors want to use the evidence, they will have to apply to a judge to be able to use anything collected through this type of warrant. Previously, anything gathered through these surveillance warrants was not allowed to be used in a prosecution.
The amended regulations give the judiciary the first opportunity to review the warrants, but only if the Department of Public Prosecutions wants to use evidence collected through this type of surveillance in court.