Police have started to use wiretapping – Felix expresses concerns

The Guyana Police Force has begun to use wiretapping as provided for under the Interception of Communications Act to fight crime, Crime Chief Seelall Persaud has said, but APNU parliamentarian Winston Felix has expressed concerns about the this mode of crime-fighting since it could be used to invade citizens’ privacy.

Asked yesterday by Stabroek News whether the force had begun using wiretapping to fight crime Persaud responded that he would not say how long it had been part of its crime-fighting arsenal.

The legislation permitting this was passed back in 2008 but up to 2010 then Commissioner of Police Henry Greene had stated that the force was still not using wiretapping.

Yesterday Persaud said that wiretapping can only be used by way of “judicial order” adding that nowhere in the law “administrative use can be done.”

This was one of the main concerns of Felix who while admitting that wiretapping can help to fight crime said that it should be controlled and not be abused, even though the legislation does provide for its controlled use.

“Though wiretapping can be useful to aiding criminal investigations concerning… criminal acts about to be committed and/or which have already been committed, the position is that it must not be loosely controlled and that to retain the integrity of the system there must be laws which govern how wire-tapping ought to be done in this country…” the former police commissioner said in a recent interview.

Felix questioned who controlled the process pointing out that the laws must ensure that it is used for specific purposes and that there should be oversight. He gave the example of a judge granting an order to permit wiretapping for specific purposes and for a specified period and when this is over the wiretapping should end.

“The use of wiretapping at any time, ought to be controlled by a judicial pronouncement,” Felix emphasized, adding that citizen rights should always be protected and not be violated because the “government wants…  to know what you are doing.”

Felix, who a few years ago as commissioner had his phone conversations recorded and parts made public, an issue that ultimately led to his stint as commissioner coming to end, said while the country must have laws which enable law enforcement to get their work done to protect citizens and the state, the same laws should not be used to invade people’s privacy.

The former commissioner also once again expressed his concerns about the Central Intelligence Unit (CIU) considering that no one knows who heads the outfit and within what legislative framework it exists.

“What is the law? Who is in charge of it? Who reports to whom on the activities of that security unit? Is there parliamentary oversight?” are questions Felix said remain unanswered that need to be answered.

He said even if the government wants to establish its own intelligence-gathering system, “they just can’t wake up overnight and say they would do it because this thing has national implications and government has no right to gather information on citizens and use it for whatever purpose they want to…”

“Once you are playing with the privacy of citizens it cannot be an open-ended arrangement and accountability [must be paramount],” Felix said.

He said given how the government is handling other economic issues there ought to be concerns about the possibility of the misuse of wiretapping and the security services which are available to them.

“Too much power in the hands of one set of people is not necessarily a good thing, and that is why we need to ensure that [a] mechanism is in place to control [this]” he said.

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 given 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 telephone companies to collect and store the ownership information of cellular phone users to aid criminal investigations when called upon to do so.

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 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 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 firearms possession, or aiding or conspiring to commit any of those offences.

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