{"id":4734,"date":"2012-09-19T09:12:33","date_gmt":"2012-09-19T14:12:33","guid":{"rendered":"http:\/\/www.ict-pulse.com\/?p=4734"},"modified":"2012-09-19T09:36:13","modified_gmt":"2012-09-19T14:36:13","slug":"intercepting-communications-right-privacy","status":"publish","type":"post","link":"https:\/\/ict-pulse.com\/2012\/09\/intercepting-communications-right-privacy\/","title":{"rendered":"Intercepting communications and our “right” to privacy"},"content":{"rendered":"

The post discusses the\u00a0framework for the lawful interception of communication, and some of the implications to consumers and the wider public.<\/em><\/p>\n

\"http:\/\/www.freedigitalphotos.net\/images\/agree-terms.php?id=10020030\"<\/a>In our roundup<\/em><\/strong><\/a> of last week\u2019s ICT\/tech news, the local press in the Cayman Islands reported that the Governor\u2019s office had declined to release information on the number of warrants it had issued to intercept telecoms messages (Source: The Observer on Sunday<\/a>). 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 \u2013 via telephones, post, e-mail, text messages, etc.<\/p>\n

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 \u2013 it is private \u2013 but can be set aside by law enforcement through specified procedures.\u00a0 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.<\/p>\n

Do share your views in the Comments section below.<\/em><\/strong><\/p>\n

Legislation on interception of communication: how does the Caribbean fare?<\/h3>\n

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.<\/p>\n

According to the findings<\/a> reported by the Harmonization of ICT Policies, Legislation and Regulatory Procedures in the Caribbean (HIPCAR)<\/a> project, only two of the 15 CARICOM member states \u2013 Jamaica and Saint Lucia \u2013 have separate and comprehensive legislation on the interception of communication (Table 1).\u00a0 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.<\/p>\n

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Table 1: Status of key provisions typically included in interception of communications legislation in CARICOM countries (Source: HIPCAR)<\/p><\/div>\n

Privacy in the world of interception<\/h3>\n

In today\u2019s society, telecoms devices, especially mobile\/cellular phones, offer relatively secure channels of communication, and \u00a0tend 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.<\/p>\n

But how does the average citizen\u2019s 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\u2019s part, interception legislation facilitates stealth, and improves their success at collecting evidence.<\/p>\n

In that regard, it must be highlighted that countries within the Caribbean might also be moving towards \u00a0requiring the mandatory registration of cellular\/mobile phones. Such a law has already been implemented in Belize<\/a>, and it has also been proposed in Jamaica<\/a>. 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,\u2013 which inherently \u00a0fosters some degree of anonymity \u2013 predominates.<\/p>\n

Potential safeguards<\/h3>\n

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.<\/p>\n

Arguably, consumers and the public at large could \u00a0benefit 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\u2019s 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.<\/p>\n

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. \u00a0As was noted above, in the Cayman Islands, the Governor issues warrants, but the absence of judicial oversight has been a point of concern:<\/p>\n

\u201cThere is no judicial oversight of this,\u201d Opposition Leader Alden McLaughlin said. \u201cThere 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\u2019t always act honourably.\u201d \u00a0(Source: The Observer on Sunday<\/a>)<\/em><\/p>\n

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:<\/p>\n