Lack of wiretap oversight draws concern

Members of the Human Rights Commission say new regulations on surveillance address some of their concerns from a 2013 report, tightening rules on when law enforcement and the governor can intercept communications without judicial oversight.

However, commissioners said they are still concerned that the audit committee, the only oversight for this type of surveillance, has not been appointed and has never met, five years after the law was passed.

“The Commission is encouraged to see the proposed amendments but continues to urge the Governor to appoint members to the Audit Committee as a matter of priority,” commissioners, writing as a group, said in a written response to questions from the Cayman Compass. The Human Rights Commission includes chairman James Austin-Smith and members Ben Tonner, Donovan Myers and Lisa-Ann Hurlston McKenzie.

Government published the new surveillance rules, part of the Information and Communications Technology Authority regulations, in May. Commissioners say they are also concerned that there is no judicial oversight of the surveillance warrants.

The amendments set new restrictions on when the governor can give a warrant to police, immigration or customs officials for surveillance, setting five circumstances as the only times the governor can give a warrant. The regulations say the governor can issue a warrant only “in the interests of national security; for the purpose of preventing or detecting serious crime; to avert an imminent threat to human life; in circumstances coming within the scope of international mutual assistance agreements; or to safeguard the economic well-being of the island.”

The original regulation gave those five reasons for issuing a surveillance warrant, but the new version states that warrants can be issued only for those reasons.

The regulations give a new definition of “serious crime” as a crime that could result in a prison sentence of three years or more, involves violence or “substantial financial gain” or involves “conduct by a large number of people in pursuit of a common purpose.”

Commission members said the new safeguards for privacy include provisions for document destruction of collected materials, disclosure to a magistrate or judge when prosecutors want to use the information in a criminal case, and make it an offense to disclose the warrants.

In 2013, the Human Rights Commission listed four main concerns with the surveillance rules, criticizing the lack of judicial oversight, no consultation with the National Security Council, that the audit committee had never met, and how “the Law appeared to contemplate the use of warrants in wider circumstances than as indicated by officials.”