The Opposition has already indicated its willingness to support the Interception of Communications Bill, which was tabled in Parliament on Friday after a marathon meeting of the Cabinet on Thursday, during which finishing touches to the bill, drafted years ago but never tabled, were made by Government ministers.
The Bill was rushed to the House of Representatives after news broke that an agency called the Security Intelligence Agency had, for years under former Prime Minister Patrick Manning, spied on citizens such as President George Maxwell Richards, former Chief Justice Satnarine Sharma and his family and others.
The 22-Clause Bill, which has been obtained by Sunday Newsday, for the first time proposes to regulate the practice of wiretapping by introducing key safeguards which will see wire-tapping authorised by the warrant of a High Court judge, upon application by an authorised official of the Ministry of National Security.
Clause 21 of the Bill proposes to make it clear that the disclosure communications obtained by wiretapping without a warrant is an offence, punishable by law with a penalty of five years imprisonment and a fine of $300,000. The interception of communication is made an offence liable on summary conviction to a fine of three years’ prison and a fine of $50,000, according to Clause 6.
Additionally, the new law is designed to compel telecommunications service providers to comply with interception warrants. Failure to do so attracts a fine of $1 million on summary conviction, according to Clause 13 (1) of the Bill. According to Clause 7(1) a person who simply possesses any interception device without authorisation is liable on summary conviction to imprisonment for five years and a fine of $250,000.
The fines of the legislation are of interest given the lucrative trade that spying has been under State agencies in the last decade.
For instance, Sunday Newsday understands that a top official of the Special Anti-Crime Unit of Trinidad and Tobago (SAUTT), a British national, was paid $1.1 million annually to wiretap phones of various subjects, some of whom included other members of the SAUTT’s surveillance team.
The British national – and at least six other Britons – earned large salaries and also benefitted from plum employment packages paid for by the State, even as they conducted illegal surveillance. The Britons had their contracts at SAUTT renewed in June and July, even as one of then bugged the phone of another SAUTT officer from October 2007 right up to this year.
The British spies employed by the State each had two years life insurance cover worth $1 million, a housing allowance of $16,000 a month; car, gas and international flights paid for by SAUTT as well as equipment paid for by the State. In Parliament on Friday, Prime Minister Kamla Persad-Bissessar said the SAUTT is to be stripped of its surveillance functions, as the State moves to streamline the scattered pockets of intelligence agencies that are now emerging.
The new legislation tabled on Friday introduces a procedure whereby an authorised officer of the Ministry of National Security may apply to a judge for a warrant. According to Clause 8, a judge must be satisfied that the warrant is necessary “in the interests of national security” or for the prevention or detection of any offence, “where there are reasonable grounds for believing that such an offence has been, is being or is about to be committed.”
But additionally, the judge has to be satisfied that other investigative procedures available are too dangerous to adopt or unlikely to be successful. Further, the application is to be supported by an affidavit giving details of the case, including “sufficient information” for the judge to make a decision. The application is to also be supported by written authorisation signed by the Minister of National Security where the warrant is applied for in cases involving national security issues. Other warrants, for crime fighting, are also possibly envisioned.
All records in relation to applications and warrants are to be sealed but may be made public at the discretion of the judge. All information obtained by legal interception is to be exempt from the provisions of the Freedom of Information Act. Anybody who discloses the existence of a warrant or an application is liable to three years imprisonment and a fine of $50,000.
There is a special clause, Clause 11, which allows urgent applications to be made orally without written documents in support of the application. Where a warrant is issued in these circumstances, the applicant has 72 hours to submit to the judge a written application in support, failing which the judge is to revoke the warrant. Human rights observers yesterday noted that this provision is vulnerable to abuse and questioned whether it allows an applicant to trick a judge into issuing a warrant when there may not be adequate justification for surveillance.
The Bill proposes to make it an offence for a person to knowingly make false statements in any application. The penalty is three years’ imprisonment and a fine of $300,000.
The legislation also allows authorised officers to ask third parties who may hold “a key” to intercepted communications to disclose such key. Failure to comply will trigger a one-year prison term and a fine of $100,000. If the authorised officer fails to faithfully use that key for the purpose of unlocking the legally intercepted communication, he faces a two-year prison term and a $200,000 fine.
Information obtained is admissible in court, but the methods used to obtain it is not to be subject to question.
The Minister of National Security may also share information obtained by wire- tapping with foreign countries with which there is an agreement for mutual exchange of information and it is in the public interest to do so. Persons who handle intercepted communications without authorisation face five years’ imprisonment and a fine of $300,000.