Modern law needed

The Internet was “born” some time in 1969 and became commercially available to the public in 1991. Clearly the framers of our Constitution which came into force in 1966 could not have contemplated the concept of the electronic invasion of privacy. Section 17 which creates the protection against arbitrary search and entry speaks of “person”, “property” and “premises”. The Internet has been around long enough for the ethereal concepts associated with it to be part of our psyche and for everyone from the hacker to the toddler to be aware of the opportunities for abuse both by the state and private individuals.

In 2012 it was reported that the Commissioner of Police had been accused of alleged phone-tapping. Last week it was reported that Facebook had denied requests by Barbadian authorities for information on the accounts of private citizens.

The Trinidad government is currently embroiled in a scandal with emails allegedly to and from the Prime Minister being bandied about in the press and on the political platform.

Edward Snowden was hiding out in Russia having “outed” the US government’s surveillance activities against its own citizens. Against this backdrop, our Attorney General, the highest legal officer in the country and Minister of Home Affairs, responsible for the police etcetera, thinks that his response to these issues should be to deny knowledge, but hedge and qualify by saying that the request “could” have been made by security authorities and claim that the Government has better things to do. As to the latter, obviously not.

Any country that is serious about attracting people to do business, protecting the rights of citizens, addressing the threat of terrorism or any of the other societal ills that can be perpetrated by the misuse of the Internet has enacted some sort of legislation. We have none.

In the United States, the Federal Wiretap Act outlines the protocols for the authorisation of state surveillance of voice, e-mail, fax, and Internet, in criminal investigations. The protocol commences with the order of a court based on a standard of probable cause to believe that “a crime has been, is being, or is about to be committed”. Terrorist bombings, hijackings and other violent activities are crimes for which wiretaps can be ordered based on the expanded list in the Patriot Act.

The Foreign Intelligence Surveillance Act of 1978 allows wiretapping of aliens and citizens in the US based on a finding of probable cause to believe that the person is a member of a foreign terrorist group or an agent of a foreign power.

Suspicion of illegal activity is not required in the case of aliens who are not permanent residents — group affiliation is enough. There are no safeguards against US spying carried on outside of the territorial US because who cares about the sovereignty of other countries.

Of course the freedom of information legislation in the US allows the average citizen to see exactly what the government has been doing for the year and the statistics on electronic surveillance are widely available. Penalties and compensation are outlined in the various state statutes for illegal electronic surveillance.

Legislation is necessary if only to define the parameters and to set the minimum threshold that the state must meet before eavesdropping on private citizens. In their response, Facebook indicated that: “We scrutinise each request for legal sufficiency under our terms and the strict letter of the law, and require a detailed description of the legal and factual bases for each request. We fight many of these requests, pushing back when we find legal deficiencies and narrowing the scope of overly broad or vague requests.”

No need to read between the lines there and the tone and language of the response should make the urgency of the need for legislation patently clear. We sent three random requests without any proper justification or excuse.

Were it not for Facebook’s report, incidentally available online, we would all continue happy in our ignorance. However, if the Government cannot meet the minimum standards for Facebook then whose standards are they subjected to locally? Their own?

In a country where persons are prey to political and other vindictiveness, that answer should make even the most upstanding citizen shudder.

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