Interception of Telecommunications

The impact of Human Rights (HR) and the need for an oversight mechanism

INTRODUCTION

The ability to intercept messages wherein ‘messages’  include a communication sent, delivered to, received or transmitted, or intended to be sent, delivered, received or transmitted by telecommunication,  is amongst a range of investigative techniques which may be used by the Royal Cayman Islands Police Service under the  Information Communications Technology Authority Law (2006 Revision) and the Terrorism law (2009 Revision) for the prevention and detection of criminal acts as well as counter terrorism.   However, the ability to use this technique must be balanced against the need to safeguard the human rights of people within the Cayman Islands. Part 1 of the Cayman IslandConstitution Order 2009 – the Bill of Rights, Freedoms and Responsibilities (BoR) sets out those relevant rights and freedoms.

Human rights are the essential rights and freedoms that belong to all individuals regardless of their nationality and citizenship, age, gender, or social status. They are considered fundamental to maintaining a fair and just society; and in the Cayman Islands they are enshrined in our BoR.

Associated with the lawful interception of telecommunication messages is the potential of intrusion into an individual’s private life.  One way of mitigating this potential intrusion is the requirement within the Information Communications Technology Authority (ICTA) Law that the interception of communications can only be authorised by a warrant signed by the Governor to fulfill statutory objectives.

A second way of mitigating potential intrusion is the oversight safeguard provided by the creation of an Interception of Communications Audit Committee. It is a matter of concern that, although required by the Information Communications Technology Authority (Interception of Telecommunication Messages) Regulations, 2011 which have been in force since 2011, such a Committee has not been established by the Governor-in-Cabinet.

PART ONE: BACKGROUND

While the topic of telecommunication message interception by the Royal Cayman Islands Police Service has recently been a topical issue for the community, the Human Rights Commission (HRC) first looked into the issue in 2011. During that time the Commission collected, from Mr. David Archbold, Chairman, ICTA, a historical perspective of legislative developments that highlights concerns  by  Members  of  the  Legislative  Assembly  related  to   vesting  power  to  issue  a communication interception warrant exclusively with the Governor rather than a judge of the Grand Court. That history has been reproduced here in Part Two below.

Following a review of the information received from Mr. Archbold the Commission corresponded with former Governor Taylor, CBE, on various points relative to the ICTA. As a result of this communication former Governor Taylor arranged for the Commissioner of Police to authorise representatives of the Human Rights Commission to meet with officials from the Royal Cayman Islands Police Service (RCIPS) in order to review the RCIPS Classified Interception of Communication Policy.

Having reviewed the policy the Commission followed up with former Governor Taylor expressing its satisfaction that the RCIPS policy dictated appropriate procedural safeguards but specifically urged that the Interception of Communications Audit Committee as legislated for under s. 17 of the Interception of Telecommunication Messages Regulations, 2011 (see Annex C) should be created as a matter of urgency.

The Commission further indicated that it wished to make it clear that while comprehensive, the policy in no way replaces an Audit Committee whose function is to conduct an audit of all interception equipment and data records at least once every six months to determine whether interceptions were conducted in accordance with the relevant Regulations.

Further, the Commission expressed concern that without the Committee there was a substantial lack of structural oversight making it impossible for the general public to be assured that the use of interception and communications data would be properly authorised as an investigative technique.

While the HRC published all of the correspondence related to the review on its website at the conclusion of the review in 2012, it has been amalgamated in this report for ease of reference for the reader.

PART TWO: LEGISLATIVE DEVELOPMENT

ICTA Bill, 2002

In February 2002, the Legislative Sub-Committee of the E-Business Advisory Board produced what it considered to be the final draft of the ICTA Bill which contained three sections with references to the interception of communications and the privacy of subscriber personal data.

The first, section 53, specified that it would be an offence to intentionally intercept, alter, replicate, monitor or interrupt any message transmitted over an ICT network or by means of an ICT service. Exceptions were provided where, inter alia, the action was taken by order of a judge or the Court (see the emphasised text in the extract below].

Section 53 –

(1) Subject to the provisions of subsection (2), a person who intentionally intercepts, alters, replicates, monitors or interrupts any message (whether in whole or in part) during its transmission over an ICT network or by means of an ICT service by any means is guilty of an offence and liable for each such message-

(a)  on summary conviction, to a fine not exceeding $10,000;

(b) on conviction on indictment to a fine not exceeding $20,000 or to imprisonment for a term not exceeding two years or both.

(2) A person shall not be guilty of an offence under this section if-

(a)  the message is intercepted, monitored or interrupted in obedience to a warrant issued by a Judge under section 55;

(b) the  message  is  required  to  be  intercepted,  monitored  or  interrupted pursuant to a Court order;

(c)  the person by whom the message is sent or to whom the message is sent has expressly consented to the interception, monitoring or interruption;

(d) the  message  is  intercepted,  monitored  or  interrupted  by  the  Authority  for purposes connected with the execution of its functions under this Law;

(e)  the message is intercepted, monitored or interrupted solely for the purpose of

preserving the technical integrity of an ICT service or ICT network; or

(f)  the message is intended to be received by the public.

Secondly, section 54 specified that it was an offence for a licensee to disclose any personal data of a subscriber or end user.  Limited exceptions included disclosures made in compliance with a warrant issued by a judge.

Section 54 –

(1) For the purposes of this section, “subscriber” shall not include an end user.

(2) Subject to the provisions of subsection (3), a licensee which intentionally discloses any personal data of a subscriber or end user is guilty of an offence and liable for each such disclosure-

(a)  on summary conviction, to a fine not exceeding $10,000; or

(b) on conviction on indictment to a fine not exceeding $20,000 or to imprisonment for a term not exceeding two years or both.

(3) Subsection (1) does not apply to-

(a)  any disclosure which is made to a constable for the prevention or detection of crime or for the purposes of any criminal proceedings;

(b) any disclosure pursuant to the provisions of any Law for the time being which requires such disclosure;

(c)  any disclosure which is made with the written consent of the subscriber or end user as the case may be;

(d) any disclosure which is made pursuant to a Court order;

(e)  any disclosure which is made in obedience to a warrant issued by a Judge under section 55; or

(f)  any disclosure which is made to the Authority for purposes connected with the execution of its functions under this Law.

(4) A licensee shall not be liable for any action or suit for any injury, loss or damage resulting from disclosure of information made pursuant to subsection (3).

Finally, section 55 enabled a judge to issue a warrant authorising the interception of a message transmitted by means of an ICT service.

Section 55 –

(1) Subject to the provisions of this section, a Judge may issue a warrant requiring the person to whom it is addressed to intercept, in the course of their transmission by means of an ICT service, such messages as are described in the warrant; and such a warrant may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the warrant.

(2) A  Judge  shall  not  issue  a  warrant  under  this  section  unless  he  considers  that  the information sought could not reasonably be acquired by other means and the warrant is necessary-

(a)  in the interests of the security of the Islands;

(b) for the purpose of preventing or detecting an indictable offence; or

(c)  for the purpose of safeguarding the economic well-being of the Islands.

Direction by the Governor

After being alerted to the wording of the sections by the Attorney General the (then) Governor of the Cayman Islands, Mr Peter Smith, CBE reviewed the draft Bill and prior to it being placed before the Executive Council (now Cabinet), he consulted with the Foreign and Commonwealth Office. The consultation came about due to the view that the issuing of warrants for the interception of telecommunications fell under the Reserved Powers of the Governor in accordance with the (1972) Constitution. After review and consultation Governor Smith directed that all references in the Bill to warrants being issued by a judge should be changed to read that warrants were to be issued exclusively by the Governor.  The version considered by the Executive Council and subsequently submitted to the Legislative Assembly contained the following revisions:

Section 53 (as was revised) –

(1) Subject to the provisions of subsection (2), a person who intentionally intercepts, alters, replicates, monitors or interrupts any message (whether in whole or in part) during its transmission over an ICT network or by means of an ICT service by any means is guilty of an offence and liable for each such message-

(a)  on summary conviction, to a fine not exceeding $10,000;

(b) on conviction on indictment to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or both.

(2) A person shall not be guilty of an offence under this section if-

(a)  the message is intercepted, monitored or interrupted in obedience to a warrant issued by the Governor under section 55;

(b) the message is required to be intercepted, monitored or interrupted pursuant to a court order;

(c)  the person by whom the message is sent or to whom the message is sent has

expressly consented to the interception, monitoring or interruption;

(d) the  message  is  intercepted,  monitored  or  interrupted  by  the  Authority  for purposes connected with the execution of its functions under this Law;

(e)  the message is intercepted, monitored or interrupted solely for the purpose of preserving the technical integrity of an ICT service or ICT network; or

(f)  the message is intended to be received by the public.

Section 54 (as was revised) –

(1) For the purposes of this section, “subscriber” shall not include an end user.

(2) Subject to the provisions of subsection (3), a licensee which intentionally discloses any personal data of a subscriber or end user is guilty of an offence and liable for each such disclosure-

(a)  on summary conviction, to a fine not exceeding $10,000; or

(b) on conviction on indictment to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or both.

(3) Subsection (1) does not apply to-

(a)  any disclosure which is made to a constable for the prevention or detection of crime or for the purposes of any criminal proceedings;

(b) any disclosure pursuant to the provisions of any Law for the time being which requires such disclosure;

(c)  any disclosure which is made with the written consent of the subscriber or end

user as the case may be;

(d) any disclosure which is made pursuant to a court order;

(e)  any disclosure which is made in obedience to a warrant issued by the

Governor under section 55; or

(f)  any disclosure which is made to the Authority for purposes connected with the execution of its functions under this Law.

(4) A licensee shall not be liable for any action or suit for any injury, loss or damage resulting from disclosure of information made pursuant to subsection (3).

Section 55 (As was revised) –

(1) Subject to the provisions of this section, the Governor may issue a warrant requiring the person to whom it is addressed to intercept, in the course of their transmission by means of an ICT service, such messages as are described in the warrant; and such a warrant may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the warrant.

(2) The Governor shall not issue a warrant under this section unless he considers that the information sought could not reasonably be acquired by other means and the warrant is necessary-

(a)  in the interests of the security of the Islands;

(b) for the purpose of preventing or detecting an indictable offence; or

(c)  for the purpose of safeguarding the economic well-being of the Islands.

Decisions of the Legislative Assembly

Prior to the revised Bill being tabled, members on both sides of the House expressed considerable concern about the revised wording of sections 53 through 55.  During prolonged discussions, the majority of the Members of the Legislative Assembly (MLA) made it clear that they would not vote for a Bill that  authorised  the  Governor rather than  a  judge  to issue  interception  warrants.  A common view within the Legislative Assembly was that if Governor Smith felt that the Constitution authorised him to issue interception warrants, there was no need for such authorisation to be repeated in section 55 of the ICTA Law. As a result, it was decided that section 55 should be deleted as part of a Committee stage amendment.  An extract from Hansard detailing part of the Minister’s introduction to the Bill is at section 1 of Annex A.  As a result of this and other Committee stage amendments (see section 2 of Annex A), the Law which was passed by the House in March 2002, and subsequently assented to by the Governor, contained only two sections concerning interception and privacy of subscriber information.  These were:

Section 53 –

(1) Subject to the provisions of subsection (2), a person who intentionally intercepts, alters, replicates, monitors or interrupts any message (whether in whole or in part) during its transmission over an ICT network or by means of an ICT service by any means is guilty of an offence and liable for each such message-

(a)  on summary conviction, to a fine not exceeding $10,000;

(b) on conviction on indictment to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or both.

(2) A person shall not be guilty of an offence under this section if-

(a)  the message is intercepted, monitored or interrupted in obedience to a warrant or order issued by the Governor;

(b) the person by whom the message is sent or to whom the message is sent has

expressly or impliedly consented to the interception, monitoring or interruption;

(c)  the message is intercepted, monitored or interrupted by the Authority or on the written instructions of the Authority for purposes connected with the execution of its functions under this Law;

(d) the  message  is  intercepted,  monitored  or  interrupted  by  the  ICT  network

provider or ICT service provider over whose network or service the message is being transmitted for the purposes of-

i.          providing or billing for that ICT network or ICT service;

ii.         preventing the illegal use of the ICT network or ICT service; or

iii.        preserving the technical integrity of an ICT network or ICT service; or

(e)  the message is intended to be received by the public.

Section 54 –

(1) For the purposes of this section, “subscriber” shall not include an end user.

(2) Subject to the provisions of subsection (3), a licensee which intentionally discloses any personal data of a subscriber or end user is guilty of an offence and liable for each such disclosure-

(a)  on summary conviction, to a fine not exceeding $10,000; or

(b) on conviction on indictment to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or both.

(3) Subsection (1) does not apply to-

(a)  any disclosure which is made to a constable for the prevention or detection of crime or for the purposes of any criminal proceedings;

(b) any disclosure pursuant to the provisions of any Law for the time being which

requires such disclosure;

(c)  any disclosure which is made with the written consent of the subscriber or end user as the case may be;

(d) any disclosure which is made pursuant to a court order;

(e)  any disclosure which is made in obedience to a warrant or order issued by the Governor; or

(f)  any disclosure which is made to the Authority for purposes connected with the execution of its functions under this Law.

(4) A licensee shall not be liable for any action or suit for any injury, loss or damage resulting from disclosure of information made pursuant to subsection (3).

Attempts to Grant Judges Power to Issue Warrants

In July 2003, during the Second Reading of the Terrorism Bill, 2003 in the Legislative Assembly concerns again arose regarding the authorisation of telecommunication interception warrants by the (then) Honourable Minister for Communications Linford Pierson.  A copy of his statement is at section 3 of Annex A.

Subsequently, in October 2003 during the debate on the ICTA (Amendment) Bill 2003, Mr. Pierson brought a Committee Stage amendment that sought to change all references to “the Governor”  in sections  53  and  54  to  references  to  “a  judge  of  the  Grand  Court”.  The amended  Bill  was unanimously approved in the Legislative Assembly.  Section 4 of Annex A is an extract of the Minister’s comments in the House.

However, in December 2003, the Legislative Assembly reconsidered two bills, the Terrorism Bill 2003 and the ICTA (Amendment) Bill 2003, which had been returned to the House by the (then) Governor Mr. Bruce Dinwiddy as he was not prepared to assent to the changes in the provisions concerning telecommunication interception warrants.  As can be seen from the Hansard extract at section 5 of Annex A, both bills were approved without amendment and returned to the Governor.

In addition to the amendments to sections 53 and 54 of the Law, the ICTA (Amendment) Bill 2003 contained a number of new provisions concerning anti-competitive conduct that were urgently required by the ICT Authority to deal with matters arising from the launch of competitive mobile telephony services.  According to the Information Communications and Technology Authority, at some stage (there is no record of the Law having been considered by the Legislative Assembly later than December 2003), the provisions amending sections 53 and 54 were deleted from the Bill and the Governor gave his assent on 31 Mar 2004; the Law was published in the Gazette on 1 Apr 2004.1

PART THREE: CONCERNS OF THE HUMAN RIGHTS COMMISSION

The Bill of Rights (BoR) – Right to Private and Family Life and Freedom of Expression

The right to Private and Family Life is found in s.9 of the BoR and states:

(1)  Government shall respect every person’s private and family life, his or her home and his or her

correspondence.

(2)  Except with his or her own consent or as permitted under subsection (3), no person shall be subjected to the search of his or her person or his or her property or the entry of persons on his or her premises.

(3)  Nothing in any law or done under its authority shall be held to contravene this section to the extent that it is reasonably justifiable in a democratic society –

(a)  in the interests of defence, public safety, public order, public morality, public health, town and  country planning, or the development or utilisation of any other property in such a manner as to promote the public benefit;

(b)  for the purpose of protecting the rights and freedoms of other persons;

(c)   to enable an agent of the Government or a public body established by law to enter on the premises of any person in order to inspect those premises or anything on them for the purpose of any tax, rate or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government or that public body;

(d)  to authorise, for the purpose of enforcing the judgment or order of a court, the search of any person or property by order of a court or the entry on any premises by such order; or

(e)  to regulate the right to enter or remain in the Cayman Islands.

The right to freedom of Expression is found in s.11 of the BoR and states:

(1) No person shall be hindered by government in the enjoyment of his or her freedom of expression, which includes freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his or her correspondence or other means of communication.

(2) Nothing in any law or done under its authority shall be held to contravene this section to the extent

that it is reasonably justifiable in a democratic society –

(a)  in the interests of defence, public safety, public order, public morality or public health;

(b)  for the purpose of protecting the rights, reputations and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received  in  confidence,  maintaining  the  authority  and  independence  of  the  courts, regulating telecommunications, posts, broadcasting or other means of communication, or public shows or entertainments; or

(c)  for the imposition of restrictions on public officers in the interests of the proper performance of their functions.

As it pertains to the human rights implications related to communications interception, s.9 of the BoR provides that the CI Government is required to respect every person’s  private and family life, his or her home and his or her correspondence. These four aspects of privacy are not mutually exclusive, and a measure undertaken by a public authority can simultaneously interfere with one or more of them. The concept of “private  life” is broad. In general, it would mean you have the right to live your own life, with reasonable personal privacy in a democratic society, taking into account the rights and freedoms of others.

In the same manner s.11 of the BoR provides that the CI Government is required to refrain from interfering with a number of ways in which a person may express themselves but specific to this scenario – with a person’s  correspondence  or other means of communication. In general this means that you have the right to voice opinions and express your views subject to the rights of other persons.

The rights conferred by s.9 and s.11 are qualified rights. S.9(3) and s.11(2) (as detailed above) sets out the grounds on which the rights may be contravened, without the interference constituting a breach of either section. If a member of the public alleges that his or her right under s.9 or s.11 has been breached, the relevant government entity or department or public official will bear the burden of proving that the measure which is being challenged is reasonably justifiable in a democratic society. The European Court of Human Rights has held that an action will be considered necessary in a democratic society if it meets a pressing social need and corresponds to shared values2.

The concept of ‘reasonably justifiable in a democratic society’ has been interpreted by the United Nations Human Rights Committee in this context to imply that any interference with privacy must be proportional to the end sought as well as necessary in the circumstances of any given case.  As such, interceptions of telecommunications will limit the right to protection from arbitrary and unlawful interference under the right to private and family life.

Correspondence with the Governor

During the said review of the Interception of Telecommunication Messages Regulations, 2011 and the Terrorism Law, 2009, the Commission noted differences with respect to the role of the Attorney General concerning the issuance of telecommunication message interception warrants; namely –

(1) ICTA Regulations (Section 7): The Governor may consult the Attorney General; and

(2) Terrorism Law (Section 55): A Constable may apply to the Governor with prior written consent of the Attorney General

As a result of the observations noted above the HRC, on 8 November, wrote to former Governor Duncan Taylor, CBE making four specific enquiries as follows –

(1) the reasoning behind an inconsistent process regarding applications for telecommunication message interception warrants;

(2) whether there is any intention to draw the public’s attention to the  aforementioned differences;

(3) whether the Government or the Royal Cayman Islands Police Service have established the necessary  “safeguards” referred to in Section 8(f) of the ICTA Interception of Telecommunication Message Regulations, 2011; and

(4) the justification for vesting power to issue telecommunication interception warrants solely in the Governor rather than a judge of the Grand Court (following a review by HRC of Hansard records, there does not appear to have been any contribution to the debates from the Deputy Governor or the Attorney General offering an explanation or justification).

On 16 January, 2012, the HRC received a response from former Governor Taylor wherein the following information was offered in response to the Commission’s enquiries –

(1) The ICTA Law 2011 and the Terrorism Law, 2009 are two very different laws. An example of how they differ is that the provisions in the Terrorism Law expressly allow for intercepted material to be used in court proceedings, whereas the ICTA Regulations prohibit the use of such material in court proceedings.

(2) With specific regard to the Governor’s remit to issue warrants, there is nothing to prevent him or her from consulting the Attorney General whether he is exercising his powers pursuant to the ICTA Regulations or the Terrorism Law. Accordingly, in circumstances where the Governor deems it necessary in order to help him assess the need for a warrant, it is open to him to seek legal advice.

(3) On the matter of establishing the necessary  “safeguards” as contemplated by Regulation

8(f) of the ICTA Interception of Telecommunication Message Regulations, 2011, these “safeguards” are contained in an internal and classified RCIPS Intercept Policy and Standard Operating Procedures document. Although not in the public domain, this document will be available to the designated Audit Committee.

(4) On the general question on why the Governor instead of a judge of the Grand Court is issuing interception warrants, this approach mirrors that of the UK where under the Regulations of Investigatory Powers Act (RIPA) and the Intelligence Services Act such warrants are issued by the Secretary of State; it also reflects the Governor’s special responsibility under the Constitution for internal security.

(5) The interception of suspected criminals’ communications is an essential covert law enforcement technique in combatting serious and organised crime. However, in putting these provisions in place, every effort has to be made to ensure compliance with human rights obligations which includes not only that such a framework be clearly established by legislation but also that such interceptions should only be carried out where to do so is proportionate to the threat in question and where there are sufficient safeguards.

In light of the response received to the HRC’s query (made to former Governor Taylor on 8 November, 2011) – “what is the justification for vesting power to issue telecommunication interception warrants solely in the Governor rather than a judge of the Grand Court?” – the HRC believes that the fact that Cayman follows the UK with the Governor having the same powers as the Home Secretary does not of itself explain why there is no judicial oversight. Further, this was never justified by the Honourable Attorney General or anyone else on behalf of the Governor during the various debates of the Bill in the Legislative Assembly.  Indeed there are now concerns in the UK on this very point and prior to forming a firm view on the matter the HRC would request that a properly reasoned justification be provided.

The Cayman Islands Constitution Order 2009 (the Constitution) – s.55 Special Responsibilities of the Governor and s.58 National Security Council

The Special Responsibilities of the Governor are found in s.55 of the Constitution which states:

(1) The Governor shall be responsible for the conduct, subject to this Constitution and any other law, of any business of the Government with respect to the following matters – inter alia –

(c) internal security including the police, without prejudice to section 58;

The establishment of a National Security Council (NSC) is detailed in s.58 of the Constitution and s.58(4) states:

(4) The National Security Council shall advise the Governor on matters relating to internal security, with

the exception of operational and staffing matters, and the Governor shall be obliged to act in accordance with the advice of the Council, unless he or she considers that giving effect to the advice would adversely affect Her Majesty’s interest (whether in respect of the United Kingdom or the Cayman Islands);  and where the Governor has acted otherwise than in accordance with the advice of the Council, he or she shall report to the Council at its next meeting.

In view of the NSC’s constitutional mandate it seems arguable that the Governor  should  be consulting with the NSC as a matter of course on any applications for an intercept warrant on matters relating to internal security.

Review of RCIPS Communications Interception Policy

During the review the Commission had the opportunity, at the arrangement of former Governor Taylor, to review the RCIPS Classified Communications Interception Policy and on 22 March, 2012 subsequently expressed its satisfaction (to former Governor Taylor and copied to the Deputy Governor Franz Manderson and Commissioner of Police David Baines) with the contents of the document, with particular acknowledgment of the anticipated role of an Audit Committee under the ICTA Regulations.

The Commission further indicated that it wished to make it clear that while comprehensive, the policy in no way replaces an Audit Committee whose function is to conduct an audit of all interception equipment and data records at least once every six months to determine whether interceptions were conducted in accordance with the relevant Regulations. It expressed concern that without the Committee there was a substantial lack of structural oversight making it impossible for the general public to be assured that the use of interception and communications data is properly authorised as an investigative technique.

Moreover, the HRC noted explicitly to former Governor Taylor that telecommunication message interception carries the potential for human rights infringements and indicated that it considered the Audit Committee to be one of the most important checks and balances in the process. For this reason, the HRC stated in its letter to former Governor Taylor that the appointment of members to the Audit Committee by the Governor-in-Cabinet, as per s.17 of the ICTA Law (Interception of Telecommunication  Messages  Regulations),   2011,  should  be  considered  a  priority  by  the Government as a means to providing a necessary layer of oversight to the process of telecommunication interception by the police service.

On 22 March, 2012 the Deputy Governor responded to the HRC confirming that the (then) Portfolio of Internal and External Affairs was in the final stages of identifying members of the Audit Committee and indicated that the matter would go before Cabinet within the next thirty (30) days.

Over the past eighteen months the HRC has made repeated enquiries regarding the status of the appointment of members to no avail.

Regulations of Investigatory Powers Act (RIPA) and the Intelligence Services Act

In responding to the general question from the HRC as to why the Governor instead of a judge of the Grand Court is responsible for the issuing of interception warrants, former Governor Taylor informed the HRC that this approach mirrors that of the UK where under the Regulations of Investigatory Powers Act (RIPA) and the Intelligence Services Act such warrants are issued by the Secretary of State. Further, he added, it reflects the Governor’s special responsibility under the Constitution for internal security.

If this was the reasoning during the drafting stage of ICTA Law, 2011 consideration should have also been given to the fact that it would be logical to conclude that if Cayman’s legislation followed the same process as the UK legislation in issuing the warrants then it would also be necessary to build in similar ‘safeguards’  as those in UK legislation with respect to RIPA.  Such ‘safeguards’  in the UK, for example, include provisions under the Interception of Communications Act which provides for the appointment, by the Prime Minister, of a Commissioner. The Commissioner is a person who holds or has held high judicial office and is independent of Government and of the intercepting Agencies.  The Commissioner’s function is to oversee  the exercise  of the Secretary of State’s power to issue communication interception warrants. In order to do this, the Commissioner undertakes inspections of the intercepting Agencies and relevant Government Departments to ensure that they are complying with the Act. The Commissioner is given full access to all relevant papers and he selects warrants for inspection, reviews files and associated documentation, and discusses cases directly with operational staff. Moreover, the Commissioner makes a written report annually to the Prime Minister which is laid before Parliament, although provision is made allowing certain sensitive matters to be withheld by the Prime Minister if he feels it necessary.

Further to the point of necessity with respect to establishing an oversight body, the UK has also instituted a statutory Tribunal to which members of the public may apply if they believe that there has been any contravention of the warrant-issuing provisions in the Act. This Tribunal, which comprises five senior members of the legal profession, is independent of the intercepting Agencies and the Government. These persons have right of access to all relevant material held by the Agencies and may, if necessary, call upon the Commissioner for assistance to investigate complaints. If the Tribunal concludes that there has been a contravention of the Act it must inform the applicant, report its findings to the Prime Minister and, if it thinks fit, make an order which may quash the interception warrant, require the destruction of intercepted material, and/or require the Secretary of State to pay compensation.

PART FOUR: CONCLUDING REMARKS

Although it has been said by the Governor, and recently by Minister Simmonds, that “the warrants would only ever be granted in very exceptional circumstances relating to very serious crime or terrorism3”, the ICTA Law would appear to contemplate their use in wider circumstances.   The HRC would wish to be provided with a properly reasoned justification for this policy decision in order that it may further consider the matter and form a recommendation as to whether the powers should be vested in the Governor (whether upon the advice of the NSC in particular circumstances or not) or a judge of the Grand Court.

The Commission understands that the ability to intercept communication is for a  legitimate objective, namely in the interests of public safety and public order by ensuring that law enforcement agencies can effectively investigate serious crimes, organised criminal activity, and conduct counter terrorism measures. Notwithstanding its legitimate function however, communications surveillance should be regarded as a highly intrusive act that potentially interferes with fundamental human rights and threatens the foundations of a democratic society when it is not monitored for legislative or constitutional compliance.

This scenario describes one of the fundamental principles of human rights – the balance of rights, freedoms, and responsibilities; treating individuals fairly, with dignity and respect – while still safeguarding the rights of the wider community.

The HRC cannot emphasise enough the importance of establishing a functioning Interception of Communications Audit Committee as the first step toward strengthening the framework for intelligence gathering in the Cayman Islands.

The Audit Committee’s function will be  to  conduct audits of interceptions and in doing so will protect the public interest by determining whether or not:

a.         communication interception is a justifiable response;

b.   the interceptions applied for offered a reasonable prospect of providing the information sought;

c.          other less intrusive methods of obtaining information were tried and failed or were not feasible;

d.   the interception stopped as soon as it has ceased to provide information of the kind sought or it has become apparent that it is unlikely to provide it;

e.         all products of interception not directly relevant to the purpose for which the warrant was

granted are speedily destroyed; and/or

f.          material directly relevant to that purpose is given no wider circulation than is essential for carrying it out.

Disconcerting, therefore, is a seeming lack of willingness by previous Governments to establish an Interception of Communications Audit Committee. While the Commission does not foresee the Audit Committee as a human rights adjudicator, there is the realisation that a layer of oversight is unexplainably missing wherein it cannot be ignored that such inadequacies increase the risk of human rights violations going undetected and unreported. Consequently, until the Audit Committee is established, the public cannot be sufficiently assured that the surveillance equipment and circumstances underpinning each instance of telecommunication message interception is compliant with the ICTA  legislation  or  established  human  rights  standards  intended  to  protect  against unlawful, arbitrary, and unreasonable interceptions.

With the addition of the Ministry of Home and Community Affairs (MoH&CA) the Commission is unaware of whether the Honourable Premier, who has responsibility for the MoH&CA, will bring forward the list of recommended persons to be appointed to the Audit Committee, or whether that responsibility remains with the Honourable Deputy Governor.  Either way the HRC urges Her Excellency to direct that the requisite Cabinet Paper be brought to Cabinet so that the Governor-in-Cabinet may confirm the appointments.

PART FIVE: ANNEX A – EXTRACTS FROM HANSARD

Section 1 : Friday , 8 March 2002 – Second Reading of I CTA Bi ll

Extract from the Introduction by (then) Honourable Minister for Communications Linford Pierson

Licensees or Subscribers

Clause 53 specifies that it is an offence to intentionally intercept, alter, replicate, monitor or interrupt any  messages  transmitted  over  an  ICT  network  by  means  of  an  ICT  service.  Exceptions  are provided where the action is taken by order of the Governor or the Court. Madam Speaker, I should mention and in connection with this section I propose to bring a small amendment, as I will be seeking to amend clause 55, and 53 is connection with that clause also.

Clause 54 specifies that it is offence for a licensee to disclose any personal data of a subscriber and user. Limited exceptions are provided.

Clause 55 (creates some problems with myself and certain Members of the House and I am going to be proposing an Amendment to this clause). This clause enables the Governor to issue a warrant authorising the interception of a message transmitted by means of an ICT service.

I should quickly add here though, that this Authority is now given to the Governor under the Cay- man Islands Constitution, so even if I amend this, the Governor will still have that authority under the Constitution. As we all know, the Constitution supersedes any other law passed or existing in this House. So, the Governor still has that same right under his reserve powers to have a message intercepted if he feels that it is warranted. This particular Clause (55) reads and I would like to read this so  that it is understood. It states: “Subject  to the provision  of this section, the Governor  may issue a warrant requiring the person to whom it is addressed to intercept, in the course of their transmission by means of an ICT service, such messages as are described in the warrant; and such a warrant may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the warrant”.

Sub-clause (2) reads: “The Governor  shall not issue a warrant under this section unless he considers that the information sought could not reasonably be acquired by other means and the warrant is necessary- (a) in the interests of the security of the Islands; (b) for the purpose of pre-venting or detecting an indictable offence; or (c) for the purpose of safeguarding the economic well-being of the Islands”.

These same powers are contained in the Constitution; therefore the Governor already has these powers so it was considered that it would be duplication to have to again recite these same powers in this legislation. So, if the Governor feels that it is necessary for him to intercept any calls, whether it is being in connection with the commission of a crime or otherwise, he already has that power under the Constitution. So, I am going to be proposing to delete this paragraph since the power is already in the Constitution for the Governor.

Part (7)–Review of Administrative Decisions and Appeals

Clause 56 sets out the procedures for the re-view of any administrative decision with respect to licensees or licensing made by the Authority.

The Speaker: Honourable Minister you have some 1 hour and 29 minutes remaining.

Hon. Linford A. Pierson: Thank you, Madam Speaker. I would like to take the opportunity to say that the reserved powers of the Governor, is contained under section (7) of the Constitution.

Clause 57 sets out the procedures for an appeal to the Court from any decision made by the Authority.

I now wish to turn to part (8) which deals with the offences under the Bill.

Section 2: Monday 18 March 2002 – Committee Stage Amendments

Clause 53

The Clerk: Clause 53 Interception of Messages Prohibited

The Chairman: The Honourable Minister for Communications.

Hon. Linford A. Pierson: Mr. Chairman, I beg to move that clause 53(2) be amended as follows: by deleting paragraph (a) and substituting the following— “(a) the message  is intercepted, monitored or interrupted  in  obedience  to a  warrant or an  order is-sued  by  the  Governor;”   -by  deleting paragraph (b) and renumbering all subsequent clauses.

Further  amendment—Subsection  2  Clause  53(2):  in  paragraph  (c)  by  inserting  after  the  word “expressly” the words  “or  impliedly”; in paragraph (d) by inserting after the word “Authority” the words   “or   on  the  written  instructions  of   the  Authority”;  and  by  deleting  paragraph  (e)  and substituting the following—“(e) the message is intercepted, monitored or interrupted by the ICT network provider or ICT service provider over whose network or service the message is being transmitted for the purposes of

i.          providing or billing for that ICT network or ICT service;

ii.         preventing the illegal use of the ICT network or ICT service; or

iii.        preserving the technical integrity of an ICT net-work or ICT service;”.

The Chairman: Permission is hereby granted for the waiver of the two days’ notice as required.

Hon. Linford A. Pierson: Thank you, Mr. Chairman.

The Chairman: The amendment has been duly moved. Does any Member wish to speak thereto?

If no Member wishes to speak, the question is that the amendments stand part of the clause. All those in favour please say Aye.  Those against, No.

Ayes.

The Chairman: The Ayes have it.  Amendments stand part of the clause.

Agreed: Amendment to Clause 53 passed.

The Chairman: The question is that clause 53 as amended stand part of the Bill. All those in favour please say  Aye.  Those against, No.

Agreed: Clause 53 as amended passed.

The Chairman: Before we read clause 54 there seems to be a question as to the marginal notes for clause   54.  On  the  inside  of   the  notes  it  has   ‘privacy   of   subscriber   information’  but  in  the arrangement of sections it says ‘privacy of customer information’. Can the Minister say which one it should be—customer or subscriber?

Hon. Linford A. Pierson:  Mr. Chairman, to my knowledge it should be customer information but

I would ask to discuss this matter with the Second Official Member and have it corrected.

The Chairman: All right.

Clause 54

The Clerk: Clause 54 Privacy of Subscriber Information

The Chairman: Honourable Minister for Communications.

Hon. Linford A. Pierson: Mr. Chairman, I beg to move that clause 54(3) be amended- by deleting sub clause (3) (e) and substituting the following— “(e) any disclosure which is made in obedience to a warrant or an order issued by the Governor;”.

The Chairman: The amendment is duly moved. Does any Member wish to speak thereto?

If no Member wishes to speak the question is that the amendment stands part of the clause. All those in favour please say Aye. Those against, No.

Ayes.

The Chairman: The Ayes have it. Amendment passed.

Agreed: Amendment to Clause 54 passed.

The Chairman: The question is that clause 54 as amended do stand part of the Bill. All those in favour please say Aye. Those against, No.

Ayes.

Agreed: Clause 54 as amended passed. Clause 55

The Clerk: Clause 55 Issue of warrant for interception

The Chairman: Honourable Minister for Communications

Hon. Linford A. Pierson: Mr. Chairman, I beg to move that clause 55 be deleted and renumber all subsequent clauses.

The Chairman: The amendment has been duly moved. Does any Member wish to speak thereto?

If no Member wishes to speak the question is that the amendment stand part of the clause. All those in favour please say Aye. Those against, No.

Ayes.

The Chairman: The Ayes have it. Amendment passed.

Agreed: Clause 55 deleted.

Section 3: Tuesday, 17 July 2003 – Part o f the debate on the Second Reading of the Terrorism Bill 2003

Hon. Linford A. Pierson: Madam Speaker, just to say that when the Information and Communications Technology Authority (ICTA) Law was proposed in Executive Council, it was proposed, in the identical form of the Bill that was just read from, that the court would have to give approval before any interception of telephone lines would be available and the then Governor, Peter Smith, removed it from the Law. He would not sign it into Law with that section in it. Recently, Madam Speaker, I brought the situation again to the present Governor. I wished to have it amended so that before any interception could be done to telephones, it would have to go through the Grand Court and not the Governor,  because the section reads: “the Governor” not meaning the Governor in Executive Council but the Governor in his own position, solo. We opposed that, and I still oppose that and I must say that I am happy with the position that this House is taking [the House was discussing removing a similar clause from the Terrorism Bill 2003] and I hope that it will lay a precedent that I can now bring a Bill to correct the ICTA Law. Thank you, Madam Speaker.

Section 4: Wednesday, 1 october 2003 – Second reading of the ICTA (Amendment) Law 2003.

Part of introductory statement by Hon Linford Pierson:

… However,  in addition to that, I intend to move  in committee stage  an amendment to the Law which  will have  the  effect  of  amending  section  53 (2) by  repealing  the  words  “in  obedience  to warrant or order issued  by  the Governor”  and substituting “the  Governor”  with “a  Judge  of  the Grand Court.” It is my intention to go into further details of this in committee stage.

Madam Speaker, I would like to say here that when the original Bill was being prepared and brought to Executive Council the then Governor had that section replaced where it referred to a Judge in the Grand Court. I have every reason to believe after discussing this with the present Governor that he might also have a problem with this amendment. However, it is the view of the Government that it is appropriate that any interception of a telephone line should be done on the order of a Judge of the Grand Court for various reasons that have already been mentioned during previous debates. I will not go into those again.

Section 5: Tuesday, 16 December 2003 – Reconsideration of Bill sent back to House by Governor

The Chairman: The House is now in Committee.

Honourable Members while there is a policy that Bills are not broadcast, it has always been a pol-icy of  the  House  not  to  remove  the  press  from  the  premises  therefore  they  will  remain  in  the Honourable House and in Committee.

Honourable Members, the first two Bills to be dealt with in Committee are the Terrorism Bill 2003 and The Information and Communication Technology Authority (Amendment) Bill 2003.

As Honourable Members are aware, the Terrorism Bill 2003 was passed with amendment by this Honourable House on 24 July 2003 and the Information Technology Authority (Amendment) Bill 2003 was passed with amendment by this Honourable House on 3 October 2003.

Both of these Bills were amended in order to provide for a Judge of the Court to authorise an interception order rather than the Governor in his discretion. These amendments received the unanimous approval of all Members present on those two occasions. I have subsequently been advised by the Attorney General that his Excellency has refused his as-sent to the Bills as amended and has requested pursuant to section 40 of the Constitution, which gives him the power to refuse his assent and to return this Bill back to the Assembly, that the Assembly reverse the amendments to the original status whereby such interception orders of telephone et cetera would be made by the Governor in his discretion.

Specifically, His Excellency has recommended that section 55 of The Terrorism Bill 2003 be amended so as to provide for an interception of communications order to  be made by the Governor, in his discretion, rather than by a judge of the Grand Court.

Similarly, that clauses 24 and 25 of The Information and Communications  Technology (Amendment) Bill 2003 be deleted, so as to provide for an interception order which would be authorised in obedience to a warrant or order issued by the Governor rather than by a judge of the Grand Court.

The two Bills, as directed by His Excellency, have therefore been returned and are accordingly now being re-submitted for consideration of those specific amendments by all Honourable Members in accordance with Standing Order 57(1).

At the conclusion of the proceedings in Committee on these two Bills, the Honourable Leader of Government Business will move that the Bills with or without amendments on recommittal be reported to the House.

Honourable  Members,  these  two  Bills,  or  Bill  5;  The  Terrorism  Bill  2003,  and  Bill  6;  The Information and Communications Technology Authority (Amendment) Bill 2003 have been recommitted for your consideration. The consideration being that His Excellency the Governor wishes  to  have  the  provision  for  “a  judge  of  the  Grand  Court” to  make  an  interception or-der, deleted and that “the Governor in his discretion” be reinserted. This is now open for debate.

The Chairman: The Honourable Leader of Government Business.

Hon. W. McKeeva Bush: Mr. Chairman, from what we understand, Members prefer not to make any changes to the Bill as was passed.

The Chairman: The Second Elected Member for George Town.

Mr. Alden M. McLaughlin, Jr.: Thank you, Mr. Chairman. These two provisions, section 25 of The Information and Communications Technology Authority (Amendment) Law 2003 and section 55 of The Terrorism Bill 2003 are provisions that have been placed in those Bills as a result of concerns, as I understand it, of all Honourable Members of the House, relating to the invasion of privacy of persons in this country. While we recognise that, in the interest of the prevention of terrorism and for other legitimate purposes, it may well be necessary for telecommunications to be intercepted, particularly in light of what has transpired in recent times, having had the experience of the Euro Bank trial fiasco, we are duty-bound to ensure that if such interception is necessary that it has the benefit of judicial scrutiny. We do not repose any trust in the judiciousness of that exercise by Her Majesty’s Government, of whom His Excellency the Governor is our representative, and therefore, Mr. Chairman, on behalf of the Opposition, we are not prepared to amend these Bills, as is urged upon us by His Excellency the Governor, and we wish that position to be duly recorded and reported to His Excellency in due course.

We mean Him no disrespect, but we are charged with the responsibility  for representing  the interests of the people of this country, not the people of any other country. If Her Majesty’s Government is insistent that these provisions should go, then they will have to do what they have to do in that respect. I must say that from our perspective their insistence on the removal is ominous, or appears to us to be ominous. Thank you, Mr. Chairman.

The Chairman: Does any other Member wish to speak? I now call on the Honourable Leader of Government Business to move the Motion.

Hon. W. McKeeva Bush: Mr. Chairman, I move that the two Bills be reported to the House without change; The Terrorism Bill 2003 and the Information and Communications Technology Authority (Amendment) Bill 2003.

The Chairman: The question is that the Terrorism Bill 2003 and the Information and Communications Technology Authority (Amendment) Bill 2003 be reported back to the House without any changes made.

All those in favour, please say Aye. All those against, No.

Ayes.

The Chairman: The Ayes have it.

Agreed. The Terrorism Bill 2003 and The Information and Communications Technology Authority (Amendment) Bill 2003 reported to the House without amendment.

PART   SIX: ANNEX B: TELECOMM MESSAGE INTERCEPTION PROCESSES IN OTHER BRITISH OVERSEAS TERRITORIES

Summary

The   following BOT’s are jurisdictions  wherein power to grant telecommunication  message interception warrants is vested in the Governor:

(1) Anguilla

(2) Cayman Islands

(3) Bermuda

(4) British Virgin Islands

(5) St. Helena

The following BOT is the only jurisdiction wherein power to grant telecommunication message interception warrants is vested in the Minister with responsibility for Communications:

(1) Gibraltar

The following BOT is the only jurisdiction wherein power to grant telecommunication message interception warrants is vested in the courts:

(1) Turks and Caicos Islands

Outline of Legislation in British Overseas Territories

Anguilla Telecommunications Act (2004)

Section 54: Powers of the Governor –

The Governor may make written requests and issue Orders to operators of telecommunications networks  and  providers  of  telecommunications  services  requiring  them  to  intercept communications, provide any user information or otherwise in aid of law enforcement or national security.

Bermuda Telecommunications Act (1986)

Section 62: Governor may prohibit transmission of messages in public interest –

Where he is satisfied that the interests of defence, public safety, public order or public morality so require, the Governor, acting in his discretion may by warrant under his hand direct that any message or any class of messages brought for transmission by telecommunication shall not be transmitted or that any telephone call or message or any class of messages brought for transmission, or transmitted or received or being transmitted, by telecommunication shall be intercepted or detained or disclosed to the Governor or to the public officer specified in the warrant.

British Virgin Islands Telecommunications Act (2006)

Section 90: Powers of the Governor –

The Governor may make written requests and issue orders to operators of telecommunications networks and providers of telecommunications services requiring them, at their expense, to intercept of his authority.

Cayman Islands ICTA Law (Telecommunication Message Interception Regulations 2011) Regulation 4: Governor may Authorise Interception –

In the exercise of power conferred under section 75(2)(a), the Governor may issue a warrant authorizing any person employed by the Royal Cayman Islands Police Service to intercept a message in relation to a matter or person for purposes of gathering intelligence for purposes specified in regulation 5.

Gibraltar Telecommunications Act (2006)

Section 76: Misleading Messages and Interception and Disclosure of Messages –

Any person who, otherwise than under the authority of the Minister or in the course of his duty as an officer of the Crown, either−

(a) uses any radio communications apparatus with intent to obtain information as to the contents, sender or addressee of any message (whether sent by means of radio communications or not) which neither the person using the apparatus nor any person on whose behalf he is acting is authorised by the Minister to receive; or

(b) except in the course of legal proceedings or for the purpose of any report thereof, discloses any information as to the contents, sender or addressee of any such message, being information which would not have come to his knowledge but for the use of radio communications apparatus by him or another person,

St. Helena Telecommunications Ordinance (1989)

Section 55: Misleading Messages and Interception of Messages –

A person is guilty of an offence who—

(b) otherwise than under the authority of the Governor or in the course of his duty as a servant of the Crown or of a Utility licenced under this Ordinance, either—

i.          uses any wireless telegraphy apparatus with intent to obtain information as to the contents, sender or addressee of any message (whether sent by means of wireless telegraphy or not) which neither the person using the apparatus nor any person on whose behalf he is acting is authorised by the Governor to receive; or

Turks and Caicos Islands Telecommunications Ordinance (2004)

Section 15: Messages

A  licensee  shall  treat  as  confidential,  the  contents  and  circumstances  of  messages  sent  by telecommunications network and unsuccessful attempts to send messages.

A licensee shall not, except where necessary to provide telecommunications service to a customer –

(a) disclose   to  any  other  person,  information   relating   to  messages  sent   by telecommunications network or give any other person an opportunity to do so; and receipt of messages –

ii.         monitor, intercept or record or permit the monitoring, interception or recording of Messages sent by telecommunications network; or

iii.        send or permit the sending of information relating to these messages by persons other than the users.

Where the Royal Turks and Caicos Islands Police Force wish to have subsection (2) disapplied in relation to a user who is suspected of a criminal offence or charged with a criminal offence they shall apply to the court for a disapplication and the court may order that subsection (2) shall not apply subject to such conditions as the court may specify.

PART   SEVEN: ANNEX C: THE INTERCEPTION OF COMMUNICATIONS AUDIT COMMITTEE

Section 17 of The Information and Communications Technology Authority (Interception of Telecommunication Messages) Regulations, 2011 provides for the establishment of an Audit Committee.

Section 17 –

(1) The Governor in Cabinet shall appoint a committee to be known as the Interception of Communication Audit Committee, whose function shall be to conduct audits of interceptions carried out under these Regulations.

(2) The ICAC shall consist of the following five persons –

(a)  a Justice of the Peace, who shall be Chairperson; (b) a retired –

i.          Judge;

ii.         Magistrate; or

iii.        lawyer;

(c)  the Chief Officer in the Portfolio of Internal and External Affairs [Home and

Community Affairs];

(d) an  information  and  technology  specialist  employed  by  the  Cayman  Islands

Government; and

(e)  a technical expert (from a law enforcement agency outside the Islands) with experience in the interception of telecommunications.

(3) Members of the ICAC shall serve at the pleasure of the Governor in Cabinet. (4) The ICAC shall adopt its own rules of procedure.

 

Section 18 speaks to the conduct of audits carried out by the Committee. Section 18 –

(1) The ICAC shall conduct an audit of all interception equipment and data records at least once every six months to determine whether interceptions were conducted in accordance with these Regulations.

(2) The Commissioner of Police shall disclose or provide to the ICAC access to interception equipment, data records and such documents and information as the ICAC may require for the purpose of enabling it to carry out its functions under these Regulations and, for the purposes of this regulation, data records do not include the recordings of the conversations or a transcript thereof.

Section 19 speaks to confidentiality. Section 19 –

(1) Members of the ICAC shall sign a confidentiality agreement with the Governor, which shall prohibit the disclosure to unauthorized persons of information obtained during the audit process.

Section 20 speaks to the publication of a report following an audit. Section 20 –

(1) The ICAC shall, through the Chairperson, present a written report to the Governor no later than 30 days after an audit is complete.