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The use of technology to ‘spy’ on citizens has been high-profile news because of continuing charges and counter-charges about what terms and on whose authority spyware has been purchased from Israeli sources, and also about who was being spied upon.
As usual, material issues have become blurred as Government, Opposition and former commissioner of police Gary Griffith set out to buss mark on one or both of the other parties to make the target look shady.
(Copyright TTPS)
The source from which the government purchases the enabling equipment is surely less of a material issue than what are the government’s powers to spy on citizens and how and for what purposes those powers are used. Regardless of whether the equipment is purchased from Israel or from somewhere else, who is really getting the wire?
The Opposition says that the Government (which the Government has denied) is abusing its spy power to spy on political opponents and private citizens for purposes unrelated to national security and to the apprehension of criminal elements. It also suggested (drawing a government denial) that the Government’s spy power was placed at the disposal of a person, not authorised by the legislation to access it, who would take instructions from the Government.
In Parliament two Fridays ago, the Prime Minister reportedly asserted that the Strategic Services Agency (SSA) was the sole custodian of all known interception of communication software and hardware procured by the Government of Trinidad and Tobago or any other state agency.
The PM also reportedly stressed that, since September 2015, it was Government’s policy that all such technology should reside within the control of the SSA. The SSA ‘has used intercept technology to conduct legally authorised intercepts done within the parameters of the Interception of Communications Act’ (the Act).
(Copyright Office of the Parliament 2022)
It is important to recall that it was the UNC/PP Government that first had this legislation passed in 2010 by a special majority. It was amended in 2020. It is the only source of legal validity for wire-tapping in Trinidad and Tobago.
The competing statements of the PM in Parliament (22 April 2022) and former commissioner of police Gary Griffith (Trinidad Guardian, 25 April 2022) confirmed the role of the SSA.
In respect of the Police Service acquiring equipment on its own initiative, such equipment has been transferred from the Police Service to the SSA (as per the PM).
Alternatively, at the very least, (as per Griffith) part of the intercept equipment acquired during Griffith’s tenure was in the custody of the Police Service and the other part held by the SSA and any party which intended to use such equipment needed both parts to do so. Consequently, there was a check and balance.
The Government seems committed that there will be no ‘spying’ by electronic means without the involvement of the SSA, validated by the Interception of Communications Act. So what is the SSA?
The SSA is a statutory body established by its own act and its main functions relate to gathering of information and developing strategic intelligence, principally relating to drug trafficking. One of its specific functions is ‘to disseminate information and intelligence to the Ministry of National Security, the Customs, the Police Service and the Defence Force’. The director of the SSA is an authorised officer under the Act.
In the Act, there are important legislative safeguards, which provide for the obtaining of warrants from a judge to permit interception and restrictions on disclosure of information obtained under the Act. Significantly, information obtained in breach of the safeguards contained in the Act will not be admissible in court.
However, discerning readers will immediately understand that, notwithstanding the sanction of the inadmissibility of evidence obtained illegally, it is a huge matter of trust and confidence whether unauthorised interception takes place.
That is precisely why it is incumbent upon the Opposition to make public any information which it has that the interception system has been abused and to do so with sufficient particularity to force the Government to be accountable. That is a higher calling than political platform bacchanal.
(Copyright Nick Anderson)
Meanwhile, will we ever see successful prosecutions arising out of the lawful use of the intercept powers in the control of the SSA?
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Martin G Daly SC is a prominent attorney-at-law. He is a former Independent Senator and past president of the Law Association of Trinidad and Tobago.
He is chairman of the Pat Bishop Foundation and a steelpan music enthusiast.
