The Tribune

By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

THE Interception of Communications Bill gives police officers the power to obtain warrants to “secretly” enter into homes and businesses in order to seize communications and install interception devices within them, attorney Fred Smith, QC, said yesterday as he continued to campaign for parliamentarians to indefinitely postpone debate on the bill until public consultation takes place.

Although secret interception of communications and installing of such devices by police, a hallmark of spy movies and TV shows, are allowed in countries around the world, Mr Smith said this is new for The Bahamas. He said Bahamians have not been given a chance to digest how much of “a revolutionary change to the landscape of privacy in The Bahamas” such activity represents.

“Right now,” he said, “when the police execute a search warrant, you have to be present at your home but Section 8 of this bill provides for an entry warrant and with that they can gain access to your possessions, your home to secretly get your postal articles, to install and to maintain an interception device or to go in and maintain an interception device when you aren’t there.”

Proponents of the bill stress that it provides a modern tool in the fight against crime as well as the kind of oversight from the Supreme Court that is missing under the Listening Devices Act (LDA), which the proposed bill would repeal.

Unsatisfied with this explanation, Mr Smith said: “It is important for our police to have a modern facility to properly investigate the kind of digital crimes that goes on, but it is wrong of the government to be rushing this through Parliament.

“What’s the rush and why the crisis in bulldozing it through? Of course, we must be good global citizens and join with other countries in fighting trans-border crime such as human trafficking, drug trafficking, money laundering, etc, but because this is going to so dramatically impact our lives, just like there was a referendum and consultation on gambling, consultation and referendum on constitutional amendments, five years of consultation on a Freedom of Information Act - we need time for the public to properly consider and engage with the government on this spy bill.”

He continued: “This bill is a dramatic change from the Listening Devices Act because it allows a third party to intercept communications, ie, not the people communicating. Right now under the LDA, at least one person must consent to the recording. This (proposed bill) is also unconstitutionally retroactive because once the police gets into your emails, they can go backwards, decades to see what you’ve done or said and can use past activities for future prosecutions and investigations. Once you’re in to the digital environment of a person, you can go backwards and there’s no protection from past activity and scrutiny. That’s the big mischief here. A smart IT or cyber person, once they’re in your email, they can leave a virus or some kind of digital hook that allows them to remain in there forever without anyone knowing. The Supreme Court judge won’t have the expertise or ability to supervise the interceptions so once the government or IT expert gets into your emails, they’re in there forever. There’s no guarantee they’ll every get out. They will know your entire digital history, past and present.”

Under the bill, a person who intentionally intercepts a “communication in the course of its transmission by means of a public postal service or a communications network commits an offence, and is liable on summary conviction to a fine not exceeding fifty thousand dollars or a term of imprisonment not exceeding four years, or to both.”

Mr Smith said this is unconstitutional.

“The constitution provides that every person is entitled to a jury trial for indictable offences, that is felonies as opposed to summary, misdemeanour offences. In Canada and the United States, anyone exposed to an offence which carries more than six months imprisonment is constitutionally entitled to a jury trial.

“I have litigated this issue all the way to the Privy Council where the government in the 1980s allowed people to be convicted by a magistrate for drug trafficking but then sent to the Supreme Court to be sentenced as if they were tried by a jury and sentenced for up to life imprisonment. The Privy Council ruled the amendment to the Drug Act to be unconstitutional. It set an upper sentencing limit only in drug trafficking cases of five years for a magistrate. In all other cases a magistrate is limited to six months. What’s been happening is that both the FNM and the PLP have been increasing the penalties for summary offences and increasing which is unconstitutional. The reason it is unconstitutional is that magistrates are appointed by the executive and they have no security of tenure whereas Supreme Court judges are there until retirement and the executive has no ability to remove them.”