The Cayman Islands Human Rights Commission wants to know why applications for warrants under new rules for the interception of telecommunications messages don’t have to go to a judge first.
According to minutes of the commission’s November meeting, “the commission will write to the governor on the matter to enquire as to the reasons for the governor’s office not having such applications presented before a Grand Court judge.”
Regulations attached to the Information and Communications Technology Authority Law allow “any person employed by the Royal Cayman Islands Police Service to intercept a message in relation to a matter or person” for the purposes of gathering intelligence.
The interception of the message – which can include any form of communication such as telephones, post, email, text messages and the like – must be authorised by a warrant issued directly from Cayman’s governor. The warrant would have to be addressed to the RCIPS commissioner, who may then authorise a police service employee to execute it.
The regulations, known as the Interception of Telecommunication Messages Regulations, 2011, were approved by Cabinet members earlier this year.
“Following a review of the [Legislative Assembly] Hansard, the commission could not find any contribution to the debate on behalf of the governor by either the deputy governor or the attorney general to explain the reasons or justification for such a policy,” the commission’s meeting minutes stated.
The commission noted it was reviewing the ICTA Law as well as other British Overseas Territories’ procedures for message interception in researching the matter.
Concerns about the lack of judicial oversight relative to the telecommunications interception warrants have been raised by members of Cayman’s opposition political party.
Opposition Leader Alden McLaughlin, in particular, has disagreed with the ‘robustness’ of the checks and balances contained within the regulations.
“There is no judicial oversight of this,” Mr. McLaughlin said.
“There is this very cosy committee of two [referring to the governor and the police commissioner].
“There are justifiable reasons for police doing this, but we know that the UK doesn’t always act honourably.”
Under the telecommunications regulations, the governor would need a specific reason for issuing such a warrant.
Those include: the interests of national security, preventing or detecting serious crime, averting an imminent threat to human life, for circumstances that fall within the scope of international mutual assistance agreements, or to safeguard the economic well-being of the Cayman Islands.
The regulations also state the governor must be “satisfied that the interception of the message is proportionate to the ends sought to be achieved by intercepting the message and the information sought to be obtained cannot be obtained by other less intrusive means”.
Warrants issued by the governor must state the facts that constitute the grounds for issuing the document, details of the person or premises to which the request relates, a description of the messages to be intercepted, details of the communications service provider, and supporting evidence that the request is urgent – in cases where the application is said to be urgent.
Urgent warrant applications may be issued verbally and only last up to 24 hours after issuance.
Otherwise, all other applications to the governor must be made in writing.
According to the Interception of Telecommunication Messages regulations, no evidence can be adduced or disclosure made for the purposes of any legal proceeding or proceeding of a Commission of Inquiry.
That means intelligence gathered in the course of any communications interception activities cannot be used in a court or formal inquiry proceeding.
An intercepted communication is defined as “any communication intercepted in the course of its transmission by means of a postal service or telecommunications system”.
Also, there is no provision in the regulations for oversight of warrants by the courts.
The regulations do establish an audit committee to periodically review the governor’s issuance of warrants under the regulations, but that review would occur only after the warrant is granted.
“The new regulations do not give police a free hand in monitoring anyone’s communications,” a statement from the RCIPS read.
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This is absolute nonsense.
There is no faith in the police systems that such autocratic privileges signed by the governor will not be abused by the RCIP and elected politicians who are already beyond the point of vindictiveness making threats to little old ladies hurling them into court. So is this the reason Mr. Bush was talking to the FCC in the US as Mr. Miller talked about on Cayman Cross Talk? Is the premier and Governor together on this one?
This gets more and more confusing.
I expect all kinds of subjects will be listed in the interest of National Security..
Like you cannot criticize a politician because he may get upset and push the nuke button trick.
Bad enough that government don’t have control of their information security, they will now allow constables to tap our commo and designate more.. Why would any modern civilization move away from judicial review in such a case, what was the argument that would support passing this law and exclude those learned heads..
New Cayman marl road soon come, along with some powerful lawsuits. I am sure those will have judicial review.
Didn’t Operation Tempura teach anyone anything?
According to information sourced in the UK one of the people employed first by the Met and then by CIG between February and September 2008 was an IT expert with specialist knowledge of message management/interception.
Don’t remember seeing any evidence of warrants for that and he for sure was not sitting round on his backside enjoying the sun for eight months.
Under ECHR you must have legal safeguards in place for this sort of stuff and authorisation by the Governor’s office, with all due respect, does not meet that requirement.