Twenty months after being signed into law by President Bharrat Jagdeo the Interception of Communications Act (wiretapping) is not yet part of the Guyana Police Force’s crime fighting arsenal despite the government’s insistence about its importance.
This was confirmed by Police Commissioner Henry Greene at a press conference on Tuesday last when a reporter asked if the force was utilising the legislation.
“Well you know the legislation, certain equipment goes with it. I don’t think everything is in place where that is concerned,” was his brief response.
During debates in the National Assembly in 2008 government MPs had argued that the legislation was needed to keep up with criminals who were becoming more technologically adept in the execution of their criminal enterprises, especially with the proliferation of cellular phones. The wiretapping law and the Telecommunications (Amendment) Bill 2008 were part of a raft of new legislation brought to the House by the government. The amendment bill was also passed and called on the companies to collect and store the ownership information of cellular phone users to aid criminal investigations when called upon.
The wiretapping law allows for the interception of electronic communication with a warrant signed by a judge or on the authority of a designated officer in cases of national emergency or should it be impractical to locate a judge in some urgent situation.
The law mandated Digicel and GT&T to put in place, at their own expense, the infrastructure to enable the interception of data and voice communication, an undertaking which the companies had said would be extremely costly. This led to months of wrangling with the Office of the President on the issue.
Stabroek News recently contacted the companies on their state of readiness and got mixed results.
“We are not yet providing the service but are cooperating fully,” was the response from a Digicel representative.
The individual was unable to say by when the companies needed to be in full compliance with the law and refused to say how much money Digicel had spent on the necessary equipment.
Meanwhile, efforts to get a comment from GT&T’s new CEO Yog Mahadeo over a two-week period were unsuccessful. However, this newspaper was told by a source that the government had collaborated with the company to purchase some of the equipment despite its earlier stance.
But according to the source, the government’s input was “miniscule.” Reports suggest that the companies would have had to spend some US$1 million to acquire the wiretapping equipment.
An application for a wiretap can only be submitted by an “authorised officer,” namely the Commissioner of Police, the army Chief of Staff and the Commissioner General of the Guyana Revenue Authority.
According to the law, a judge shall not issue a warrant unless he or she is satisfied that it is necessary, that the information obtained will assist the investigation into the matters covered by the application, or that other means of investigation have been unsuccessful or are unlikely to succeed. Communication intercepted with a warrant is admissible in court.
The legislation had raised the ire of the parliamentary opposition who argued about the potential for its misuse by the state and the invasion of people’s privacy. The debate had gotten so heated that the Speaker of the House was forced to suspend the sitting.
Government members argued the absence of the law was one of the reasons why it was difficult to do anything about the illegal tapping of former Police Commissioner Winston Felix’s phone, which created a scandal when his private calls were released to the public – a situation that was cited by several opposition speakers who bemoaned the fact Felix ended up facing the brunt of the resulting persecution.
The law states that a warrant will authorise the tapping of communications transmitted from a private or public system to or from one or more addresses listed in the warrant. The warrant can be issued for a period not exceeding 90 days and may be renewed. Once a warrant is issued under this section a written application and affidavit would have to be provided within 72 hours of the issuing of the warrant.
The law also permits as directed by the minister responsible for national security the disclosure of the intercept to a foreign government or agency of such government where there exists an agreement for the mutual exchange of information. The unauthorised disclosure of intercepted information can lead to a fine not exceeding $5M and imprisonment for a term not exceeding three years.
Offences for which a wiretap warrant could be issued include murder; treason; terrorism; trafficking in persons; kidnapping; money laundering; narco-trafficking; illegal firearm possession; or aiding or conspiring to commit any of those offences.
