NO SPYING!

Judge blocks INDECOM from getting phone records

Barbara Gayle, Justice Coordinator

As the dispute rages in the United States and Britain about security agencies listening to calls and checking emails in the name of national security, the local Supreme Court has said a loud 'no' to attempts by a state agency to access telephone records.

In a ruling handed down last week, the Supreme Court put the brakes on the Independent Commission of Investigations (INDECOM) in its attempts to get call records from telecommunications provider Digicel.

The court ruled that INDECOM cannot compel Digicel to disclose information about its customers or force it to provide traffic data.

"This judgment reinforces the fact that unless the request for information from a communication provider is routed through the proper legal channels, the customer's data must be protected from unauthorised disclosure," says Digicel's lawyer Maurice Manning.

According to Manning, privacy rights have a growing importance in the modern age.

"We see this playing out before our eyes in the case of Edward Snowden and the alleged invasion of privacy of Internet and phone data in the United States," said Manning.

He noted that both sides recognised the importance of getting a declaratory ruling from the court on this important privacy versus criminal investigation issue.

"My client has always cooperated with law-enforcement authorities once they ascertain that the requests are within the confines of the law," added Manning.

Justice Ingrid Mangatal, after hearing legal submissions from the lawyers representing the parties, ruled in favour of Digicel and granted several declarations.

NOT COMPELLABLE

The judge held that Digicel was not compellable under the law to provide customer or subscriber information to INDECOM.

She held further that under the Telecommunications Act, Digicel was restricted from providing the information regarding the use of its services by third parties to INDECOM.

The judge also ruled that under the Interception of Communi-cations Act, INDECOM was not an authorised officer or designated person to get such information.

The judge found that the INDECOM Act was not a law requiring disclosure of customer information for the purpose of investigating or prosecuting a criminal offence.

In December 2009, the Bureau of Special Investigations began investigating the fatal shooting of Robert 'Kentucky Kid' Hill by members of the security forces.

A file was prepared and submitted to the director of public prosecutions (DPP) who ruled that the matter be sent to the Coroner's Court.

The DPP also recommended that further in-depth investigations be carried out into allegations that officers implicated in the shooting were part of a conspiracy involving a cousin of the deceased and a woman.

Based on the recommendation, INDECOM commenced a probe into the alleged conspiracy plot.

In September 2011, INDECOM served notices under the INDECOM Act for Digicel and LIME to provide information relating to the telephone number of the persons named in the alleged conspiracy.

NO COMMON GROUND

Digicel took the view that it could not comply with the request because the Telecommunications Act and Interception of Communications Act prohibit it from disclosing such information.

The parties could not find common ground and they agreed that it would be best to take the matter to court.

Digicel said it was not unwilling to provide the information but needed the court to clarify the issues and provide a ruling before it could act.

Submissions were made on behalf of INDECOM by attorney-at-law Shawn Wilkinson.

The judge said in light of the circumstances the parties should bear their own legal costs.

Mangatal said no doubt Parliament has its own reason for wanting to give telecoms providers the type of discretion which it has entrusted upon them and conferred under the Telecommunications Act.

She added that if Parliament intended to confer upon INDECOM the power to compel the data, information, statements or documents being sought, then it should consider amending the Interception of Communications Act and the Telecommunications Act to specifically name INDECOM as authorised to mandate disclosure.