EDITORIAL - Tighten access to telecoms data

This newspaper is all for granting to the Independent Commission of Investigations (INDECOM), the agency that probes abuses by the security forces, the right of access to the telephone records and other communications data of any person it is investigating. Indeed, it may be even be appropriate, as Peter Bunting, the national security minister, suggests, to extend that authority to other areas and/or agencies of law enforcement.

However, we believe that the process by which this right is currently exercised should be reviewed to afford greater protection of privacy and to lessen ministerial power and the potential for abuse that arises therefrom. The issue is now before a joint parliamentary committee and part of a broader review of the INDECOM Act, in which the agency's boss, Terrence Williams, is arguing for greater independence of action.

At present, under the Telecommunications Act, at Section 47, the commissioner of police, an officer of the Jamaica Constabulary Force who has charge of internal security or the National Firearms and Drugs Intelligence Centre, can apply to the telecommunications carrier for information about a client, including the types of service they utilise, when and how, for the purpose of investigating a crime, or threats to national security. The chief of defence staff of the Jamaica Defence Force (JDF) and the head of military intelligence can also access that information.

INDECOM, however, has no such right. Indeed, Mr Williams explained that the agency's normal course is to seek the required approval via the police, who, sometimes, are unwilling to share the information. The law, though, makes INDECOM an independent agency that pursues investigations in its own right. It is not subordinate to the constabulary. Indeed, the courts have upheld its right of arrest and prosecution in cases arising from its investigation.

In that regard, its right of independence to gather information for its investigations should be beyond debate. Except that INDECOM, and other agencies, should be required to face higher hurdles than is currently the case when seeking people's private communication data and records, which the law presumes to be 'secret and confidential', before it offers the exceptions.

SUBJECT TO JUDICIAL APPROVAL

We believe that there is no substantial difference between the privacy of a person's telecommunications record and/or data and having the privacy of his communications impinged upon at the time it is taking place. For the latter to be done lawfully, under the Interception of Communications Act, the authorised officer is required to get a warrant from a judge, based on an application outlining the reason for the request.

The presumption here is that the citizen's constitutional right to the privacy of his or her communication is sacred and ought not to be violated but for good reason, which should be subject to an appropriate test by the independent judiciary. Further, by placing specific limits on the use of the intercepted information, the law limits the scope for abuse and damage to the citizen. The same, or similar, restraint should be placed on the State's access to communication records and data over which the citizen enters into a contract with a telecommunications provider on the assumption that the information will be held as confidential and private.

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