by Larry Smith
‘Kill the Bill’ has become a rallying cry for privacy advocates in the Bahamas ever since the government - without prior notice - tabled a draconian new surveillance law called the Interception of Communications Bill.
This law will let the authorities intercept and store any communication. Other than applying for a warrant, there are no safeguards built in that would cover such issues as attorney-client privilege, the confidential sources of journalists, or the conversations of members of parliament.
The proposal follows on the heels of similar legislation enacted in Britain, Jamaica, Trinidad, Guyana and other countries over the last decade or so.
These laws all trace their origin back to the US Patriot Act, passed after the 2001 terror attacks on New York and Washington. Among other things, the Patriot Act gave authorities a free hand to conduct mass surveillance and secretly enter homes and businesses.
Secret search of your home or office is also a feature of our government’s Bill, which was recently withdrawn following an avalanche of criticism. However, the government is not abandoning the law. Rather, it will craft a public relations campaign to help push it through.
In 2013, the US National Security Agency whistleblower Edward Snowden revealed for the first time that the British and American governments were engaging in mass surveillance of their citizens and others around the world.
According to Barton Gellman of The Washington Post, “The revelations brought to light a global surveillance system that cast off many of its historical restraints after the attacks of September 11, 2001.”
Among the bombshells Snowden revealed was a secret NSA test programme to intercept and archive every cell phone call in the Bahamas, as well as several other countries like Mexico, the Philippines and Kenya.
The impact of realising that the government - all governments - have secret access to all of our information and communications should be chilling. Imagine how the inside jokes we share with our friends online could be misinterpreted.
In the documentary film, Citizen Four (which is running on Cable TV now), Snowden told interviewers: “People self-police today because it’s become the expectation that you are always being watched.”
Documents released by Snowdon indicate that information is often covertly acquired by the NSA under the auspices of “lawful intercepts” made through Drug Enforcement Administration “accesses”.
The DEA is one of the most widely deployed US agencies around the globe (including the Bahamas of course), according to the website Intercept.com, founded by award-winning journalist Glenn Greenwald who helped break the Snowden story.
Currently, legal surveillance in the Bahamas is covered by the 1972 Listening Devices Act, which requires all wiretaps to be authorized in writing either by the minister of national security or the police commissioner in consultation with the attorney general.
The individuals to be targeted must be named. And under the Data Protection Act, personal informstion may only be “collected by means which are both lawful and fair in the circumstances of the case.”
Before we get into a discussion of the Bahamian Bill, it is worth looking at what happened in Britain. Snowden says the British have a mass surveillance system just as large as the US.
A draft law was proposed to legalise these global surveillance activities under David Cameron’s coalition government in 2012, but it was blocked by his Liberal Democrat partners. When the Conservatives were returned to office without Lib Dem support, they revived the Bill.
But in contrast to the Bahamian Bill (which came out of the blue), the British legislation went through three independent reviews followed by extensive scrutiny even before it was tabled in parliament. And over 1700 proposed amendments were debated before the law passed at the end of last year.
The British government can now legally intercept and collect everyone’s communications - not just those of criminals. But the law also lays down the rules about these powers, which are supervised by a new Investigatory Powers Commissioner.
Judicial approval is required for an investigatory body to identify a journalist’s source, and extra consideration is also given to other “sensitive” professions such as doctors, lawyers and MPs. But - as with the Bahamian Bill - the reasons why a warrant to read your messages could be approved are vague.
One of the negative aspects of the Bahamian legislation is that it fails to provide protection for journalists’ sources, which will certainly discourage whistleblowers.
The 1972 Listening Devices Act allows the commissioner of police and the attorney-general to authorise intercepts for the purpose of a police investigation into a criminal offence - for a period not exceeding 14 days.
Under the proposed new law, everything we do on the Internet or on our phones or through the mail will be intercepted and stored for a renewable period of three months. This data can be trawled through by government agents.
The Bill updates the technologies that can be intercepted and makes warrantless interception illegal - in other words, they can do it but we can't. The police and security services can hack your computer or phone, and they can enter any premises to do it without your knowledge.
Most importantly, the grounds for interception have been broadened from just the prevention or detection of a crime. They now include national security, public order, public morality, public safety, public health, for the purposes equivalent to the provisions of any mutual legal assistance agreement, or to prevent death or injury.
To take just one of these umbrellas, 'national security' includes subversion as a ground, and the ordinary meaning of subversion is “the undermining of the power and authority of an established system or institution.” That could apply to almost all dissent. And public morality could cover anything at all in this tightly wrapped, self-righteous, hypocritical little society.
As for the Bill’s requirement for the government to report on interceptions to parliament, the Hospital and Health Care Facilities Board is also supposed to table a yearly report, but at last count only two had been provided since the board’s inception in 1998. This is par for the course at most government agencies and corporations.
Critics also point out that the Bahamas has no ombudsman of any sort, no independent prosecutor, no independent attorney-general, and no independent commissioner of police. And our governments (especially this one) have demonstrated a willingness to ignore court rulings and otherwise flout the rule of law.
Even more concerning is the fact that the Bill allows a politically appointed magistrate to impose severe summary prison sentences (with no jury trial by a tenured judge). This means that any protection afforded a whistleblower under the Freedom of Information Act (should it ever be brought into force) will no longer exist.
The only relevant case I can recall took place in 1958, following the celebrated general strike. Labour leader Randol Fawkes had attempted to meet with workers at an American-owned logging company on Andros to investigate claims of abuse.
He was charged with trespassing and sentenced by a magistrate to a three-year probation (which was more punishment than the law specified). Soon after, at a rally on Windsor Park, Fawkes criticized the decision and the crowd yelled for the magistrate’s removal. Police chased them away and Fawkes was charged with sedition.
He was defended by Jamaican lawyer Vivian Blake, who later became a chief justice of the Bahamas. According to the presiding judge, “the meaning of ‘seditious intention’ as defined in our penal code...is an intention to bring into hatred or contempt or to incite disaffection against the administration of justice."
The charge was unprecedented in the Bahamas, but the judge eventually ruled there was no case to answer.
In a historic 1942 speech to the governor after the Burma Road riots, Dr C. R. Walker pointed out that “Warrants for the arrest of would-be social reformers are frequently issued for the most trivial of offences. In this way the law is made a weapon to club the natives into submission.”
These examples from the recent past should act as cautionary tales to what the government is trying to do now.
In 2014 the Privy Council ruled on a Bahamian drug trafficking case involving telephone intercepts. Lawyers had called the wiretap evidence illegal and unconstitutional, but the Listening Devices Act was upheld. However, the appeal judges urged parliament to revisit our surveillance regime. And the Interception of Communications bill is the result.
At the beginning of Perry Christie's term in 2012, his administration created an intelligence agency to deal with national security threats, appointing a former Defence Force chief to run it.
Legislation to formally establish the National Intelligence Agency has been promised ever since, but the government’s term will likely expire before such a Bill is actually brought to parliament.
All we know is that the NIA reports directly to a cabinet minister named Bernard Nottage, who says the agency “identifies and monitors groups that pose a threat.” In other words, this shadowy agency is carrying out its vague, hidden mission without any lawful authority or publicly defined terms of reference.
In our highly politicised world the combination of a secret intelligence agency with no public oversight and a law that lets the government sift through all of our private communications is cause for serious concern.