The potential for legal liability and human rights violations apparently forced the Cayman Islands government’s hand on the approval of a Data Protection Bill in the waning hours of its last Legislative Assembly meeting.
The bill’s last draft was published in April 2016 and it was placed on the assembly’s agenda for a vote 11 months later in the midst of a jam-packed March meeting during which 36 other pieces of legislation were being considered. Various amendments were made to the 2016 bill during the legislative committee’s review earlier this month.
The Cayman Islands has no legal mechanism to regulate the use of closed circuit television cameras in public areas, despite installing those cameras in 2011, although it has a “code of practice” in place which is not legally binding. Since that time “there has been a significant increase [in] the use of CCTV within the islands,” according to the Cayman Islands Human Rights Commission.
“Without the implementation of a comprehensive data protection law to address the diverse circumstances in which CCTV is used, policies or codes of practice on their own are generally not considered a sufficient legal framework to support the careful balance needed between human rights and the operation of CCTV,” the commission noted in its 2016 annual report.
Some specific problems were raised with the government’s use of CCTV cameras. For instance, at the Lighthouse School in George Town district, CCTV cameras are used “to enhance the safety of students, staff and others on school premises and to deter destructive acts to property,” according to the Department of Education.
The Human Rights Commission was particularly worried about the retention of images captured by the CCTV cameras without data protection or legal policies regulating the cameras.
“The commission remains of the view that without such regulations, the use of CCTV will remain unlawful under both the constitution and the European Convention of Human Rights,” the report noted.
Another issue raised by the commission is the use of drones by the Cayman Islands prisons service to conduct surveillance on individuals who toss illegal drugs over the Northward prison perimeter fence. In addition to the prisons, the Civil Aviation Authority noted it had received “numerous” requests for the public use of small unmanned aircraft from residents.
“The commission’s concerns relate not to the rights of those committing or planning crime, but the possible invasion of privacy that the devices could post to nearby members of the public, neighbors and landowners when the drones are deployed outside the prison,” the Human Rights Commission noted.
Similar concerns were raised by the commission about the Royal Cayman Islands Police use of a thermal imaging or FLIR camera on board its helicopter, with the specific problem again raised regarding the retention of those images.
The concerns about the lack of legal regulation for CCTV in the Cayman Islands were raised six years ago by Acting Information Commissioner Jan Liebaers.
“CCTV is operating in a legal vacuum,” Mr. Liebaers said at the time. “The code of practice [for CCTV] refers to the fact that the system would be governed by data protection.”
The government has attempted to pass data protection legislation since 2010 and had failed to do so until this month. The implementation of data protection regimes, which will have a huge impact on Cayman Islands business, is expected to be staggered, with government agencies coming into compliance first and sections of the private sector following after.
The data legislation seeks to protect personal privacy rights and instructs private sector businesses and government agencies on how they must handle personal records.
The two previous attempts to pass data protection legislation ended largely because of an uproar from the Cayman business community after its members saw the cost of implementing such a plan for their operations.