By Frederick R. Smith, QC
When the PLP was obliged to back down from an earlier version of the ‘Spy Bill,’ it was a huge victory for civil society and an important boost for fundamental human rights in The Bahamas.
Unfortunately, the recent decision by the FNM to reintroduce this dangerous legislation – or rather, a more extreme and far-reaching version – is an equally staggering blow.
It would seem we have been knocked back to square one in the fight to protect a citizen’s right to privacy in The Bahamas.
What does it say about this new government, which promised to balance power with accountability, that the public still have no Freedom of Information Act with which to monitor their behavior in office, yet our leaders are equipping themselves to invade every aspect of our private lives with impunity?
Can it be a mere four months after coming to office the FNM is already bereft of ideas and feels forced to rely on the same tired, tattered playbook as their predecessors?
Grasping at straws
The government contends the Bill is needed in the fight against crime, yet it is difficult to see how it can be of any material benefit in this regard.
Violence, in particular gun violence, is by far the most significant factor in our crime dilemma. Until the roots of this phenomenon – the drug trade and a gangland culture created by poverty and social degeneration – are tackled, little will change regardless of how many suspects are arrested or what new assets, Spy Bill included, are brought to bear.
At best, the Minnis administration may be seeking to merely create the impression of action in the short term, with regard to what they know is actually a long-term problem. At worst, they are simply grasping at straws, at their wit’s end when it comes to crime. Neither, quite frankly, is acceptable.
Meanwhile, they are proposing to pass a Bill goes far beyond violent crime, allowing them to tap your phone, read your emails, break into your home and install secret cameras in connection with a list of suspected activities so long, vague and varied as to be virtually limitless.
A license to spy
‘Sedition’ is a particularly dangerous category for surveillance under the Bill.
A terrifying throwback to less democratic times, this obsolete charge was designed specifically to shield unjust rulers from criticism. It is also at odds with the right to freedom of expression as enshrined in the Bahamas Constitution.
Under this Bill, it is conceivable, and indeed highly likely, that in the short term some Bahamians will be spied on for making critical comments about the authorities. This means everyone from journalists to activists to political opponents will be in the crosshairs.
Over time, it will inevitably become standard practice to secretly watch and gather embarrassing information about political rivals and critics of the regime, to be used against them later.
This pattern has asserted itself repeatedly throughout history in countries where systems of domestic surveillance were originally justified as being in the public interest.
Giving any government such a licence to spy on its citizens inevitably leads to abuse of the system in the interest of retaining power, thereby challenging the very foundations of democracy.
Worse than the PLP Bill
All this could be said of the Bill brought by the PLP just before the May 1 election. This new version goes much further.
For example, under the old Bill, all interception of communications had to be sanctioned by a warrant from a Supreme Court judge. In this version, however, a “designated person” – the Cabinet Minister overseeing the Spy Program or someone they appoint – may order the intercept your personal data on their own, without judicial oversight.
Even worse, the criteria for spying need only be the designated person deems it to be in the interest of “public order,” “public morality,” or “public health” – terms so vague they could easily be made to cover virtually any behaviour deemed offensive by authorities. Nor are these terms defined anywhere in the law.
Essentially, under the FNM’s Bill, a Cabinet Minister or his representative could spy on anyone they wish, at any time, and for as long as they see fit, with no judicial oversight to keep them in check.
The potential for abuse here is immense. Especially because this designated person will be able to operate under the cloak of darkness, having to report to no-one about their activities. Meanwhile, the Bill would make it a crime for anyone involved to disclose the existence of such a spy campaign, even if only to report a misuse of the system.
The FNM would create an untouchable Spy Boss – a KGB style secret police chief that is a law and power unto himself or herself.
Ruled by fear
It is said whenever a government fears the people, there is liberty, and whenever the people fear the government, the result is tyranny.
Unbridled surveillance of the population breeds a frightened public, and the road from government spying to a society ruled by fear is a short one.
Totalitarian regimes have long understood what keeps a citizen in check is not so much the fear his true crimes will be revealed through surveillance, but rather false accusations can be constructed from the stolen pieces of even a blameless life.
The selective use of information can justify virtually anything and citizens quickly learn to be silent about their government’s shortcomings to avoid being targeted in this way.
Ironically, many governments seek to spy on the public, not so much to uncover the transgressions of citizens, but rather to avoid being criticized for their own.
Such a scenario may seem far-fetched and alien to our experience in The Bahamas, but consider what the environmental group Save The Bays was subjected to by Education Minister Jerome Fitzgerald last year.
Members suffered a wholesale rape of their privacy at the hands of a hostile government. A fake conspiracy narrative was then created through the selective disclosure of harmless emails, in order to threaten activists with prosecution.
It was a textbook example of what victimization looks like in a mass surveillance society where fear is used to silence critics.
Just imagine the potential for this kind of abuse and intimidation when such invasions of privacy are actually sanctioned by the law.
Threat to a weak opposition
If this Bill is allowed to pass, activists will certainly suffer. Journalists will definitely be targeted, as will their confidential sources. It will only be a matter of time.
Without question, however, the principal victims will always be those who happen to be vying with the government of the day for political power at any given time.
In the run up to each future election, the private information of opposition candidates will be mined for every embarrassing little secret, every sensitive family matter or personal tragedy. These will be broadcast anonymously on social media for all the world to see, in an effort to shame or humiliate the candidate in the eyes of the public, or worse – falsely accuse them of wrongdoing.
In this regard, the FNM would do well to consider the other side of this coin, as they cannot remain in office forever.
At the moment though, the opposition happens to be a very weak Progressive Liberal Party and they are very much in the crosshairs of this Bill.
A tiny opposition, facing a government that came to power in a huge landslide victory and which is now equipping itself with formidable new powers capable of neutralizing all opponents – the danger to our democracy should be clear for all to see.
Civil society must unite
The Chinese say that every crisis is also an opportunity.
The enormous challenge to our fundamental rights represented by the Spy Bill comes at a time when civil society in The Bahamas is stronger than ever before.
Under the last PLP government, activists of all stripes joined together to fight for freedom, transparency, accountability and other public interest goals.
Culminating in the powerful symbol of thousands of Bahamians occupying Bay Street in the ‘We March’ protest, this effort was a significant factor in the downfall of the Christie administration.
Civil society is now a force to be reckoned with in The Bahamas.
We must use our newfound power to unite against this frightening Spy Bill and force the government to revoke it. We must convince them to pass a Freedom of Information Act, as promised, immediately.
Above all, we must protect the opposition from any and all attempts to place them at an unfair disadvantage politically.
Even for those of us who disagree with them politically, it is of crucial importance we defend the right to privacy of every single PLP and vocally oppose every effort to victimize them through the abuse of their personal information.
What is at stake is nothing less that the integrity of our democracy.
So, if you are a person who cares about fundamental human rights, if you believe privacy is important, if you care about the Constitution of The Bahamas, if you care about the preservation of democracy, I urge you to join us in opposing this Bill.
I urge the PLP to join this fight as well, if for no other reason than in the name of self-interest.
Together, we can demonstrate the power of citizen action is something that can traverse political regimes.
Let us show the powers that be that civil society is here to stay and we will no tolerate any encroachment on the social principles which safeguard our liberty and democracy.
- Last Friday, the government announced certain changes to the Spy Bill are afoot. I will continue to discuss the document in its present form unless and until these changes become reality. We have heard such promises before. Nor would the foreshadowed amendments be sufficient to make this Bill palatable from a human rights perspective. - FS