Intercepting communications and our “right” to privacy
The post discusses the framework for the lawful interception of communication, and some of the implications to consumers and the wider public.
In our roundup of last week’s ICT/tech news, the local press in the Cayman Islands reported that the Governor’s office had declined to release information on the number of warrants it had issued to intercept telecoms messages (Source: The Observer on Sunday). The Governor of Cayman is empowered under the Information and Communications Technology Authority (Interceptions of Telecommunication Messages) Regulations, 2011, to issue such warrants to the Police. Messages that can be intercepted include any form of communication – via telephones, post, e-mail, text messages, etc.
In most countries, be it through a formal constitution or an amalgam of provisions cobbled together under common law, citizens have a general expectation of a right to privacy. In telecoms, this right is typically enforced with respect to communication between persons – it is private – but can be set aside by law enforcement through specified procedures. In this post, we begin to explore the framework for the lawful interception of communication, and some of the implications to consumers and the wider public.
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Legislation on interception of communication: how does the Caribbean fare?
Generally, legislation on interception of communication makes it unlawful for persons to intercept communications conveyed by a variety of media, but also specifies, to varying degrees, the circumstances under which interception could be done lawfully. Typically, the authority to intercept can only be granted by a judge and would be issued to the Police, and/or other branches of law enforcement, to implement.
According to the findings reported by the Harmonization of ICT Policies, Legislation and Regulatory Procedures in the Caribbean (HIPCAR) project, only two of the 15 CARICOM member states – Jamaica and Saint Lucia – have separate and comprehensive legislation on the interception of communication (Table 1). In its absence, most countries rely on the few sections on this topic included in their Telecommunications Acts, along with other statutes, to provide the appropriate guidance.
Privacy in the world of interception
In today’s society, telecoms devices, especially mobile/cellular phones, offer relatively secure channels of communication, and tend to be seen as an extension of the individual. As a result, and although we might not be aware of it, law enforcement regularly relies on provisions permitting interception of electronic communication, in order to strengthen their cases to prosecute alleged offenders.
But how does the average citizen’s expectation of privacy jibe with the increasing practice by law enforcement to intercept communications? In both principle and practice, the two positions are diametrically opposed. With the growing sophistication of crime, and the proliferation of cyber crime in particular, the investigative methods available to the police must also evolve. It also means that no one is immune from scrutiny, and neither is there an obligation to inform persons that they are under investigation. On the police’s part, interception legislation facilitates stealth, and improves their success at collecting evidence.
In that regard, it must be highlighted that countries within the Caribbean might also be moving towards requiring the mandatory registration of cellular/mobile phones. Such a law has already been implemented in Belize, and it has also been proposed in Jamaica. While the premise given for introducing such legislation is to assist in the recovery of stolen phones, the device details recorded in those mandatory registration processes also allow a phone to be traced back to a specific consumer. Hence that information would be a critical input to any proposal to intercept mobile/cellular phone communications, and is especially useful in the Caribbean where pre-paid service,– which inherently fosters some degree of anonymity – predominates.
In light of the above, and perhaps not unexpectedly, provisions allowing law enforcement to intercept communications is often met with scepticism and concerns about the likelihood of abuse.
Arguably, consumers and the public at large could benefit from being more aware of the extent to which the Police exercise options to intercept communications. Some countries across the region have laws, such as a Freedom of Information Act, that encourages transparency by permitting full or partial disclosure of communication, information and transactions by public bodies. An exception to such rules would normally be on the grounds of national security, which was the reason cited by the Governor’s office in Cayman for not providing the requested information. Hence, there might be no obligation to provide any information (whatsoever) regarding the use of interception of communication rules.
On the other hand, a key safeguard that is implemented in many countries is that warrants to intercept are issued by members of the judiciary. As was noted above, in the Cayman Islands, the Governor issues warrants, but the absence of judicial oversight has been a point of concern:
“There is no judicial oversight of this,” Opposition Leader Alden 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.” (Source: The Observer on Sunday)
When applications are made to a judge, he/she usually requires suitable justification in order to issue a warrant. Typically, he/she would consider the arguments made, and weigh the application against, among other things:
- a person’s right to privacy;
- whether there is sufficient evidence to support the application; and
- ultimately whether the issuance of a warrant is in the public good.
Although judges might offer the public at large some degree of protection from unscrupulous invasion of privacy, the powers granted to law enforcement to intercept communications has always been a controversial issue – since the early days of wire-tapping. Hence it may be argued that the proliferation of cellular/mobile phones across the Caribbean inherently makes every individual a potential target for scrutiny by the Police, and as a result, has raised the stakes.
On which side of this issue do you fall?
Do you think a case can be made for a better, and perhaps more transparent, balance to be established between a citizen’s right to privacy, against investigative practices needed to maintain of law and order? If YES, what “balance” would you propose?