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Law would give power of secret entry to homes and businesses

Fred Smith

Fred Smith

By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

THE Interception of Communications Bill gives police officers the power to obtain warrants to “secretly” enter into homes and businesses in order to seize communications and install interception devices within them, attorney Fred Smith, QC, said yesterday as he continued to campaign for parliamentarians to indefinitely postpone debate on the bill until public consultation takes place.

Although secret interception of communications and installing of such devices by police, a hallmark of spy movies and TV shows, are allowed in countries around the world, Mr Smith said this is new for The Bahamas. He said Bahamians have not been given a chance to digest how much of “a revolutionary change to the landscape of privacy in The Bahamas” such activity represents.

“Right now,” he said, “when the police execute a search warrant, you have to be present at your home but Section 8 of this bill provides for an entry warrant and with that they can gain access to your possessions, your home to secretly get your postal articles, to install and to maintain an interception device or to go in and maintain an interception device when you aren’t there.”

Proponents of the bill stress that it provides a modern tool in the fight against crime as well as the kind of oversight from the Supreme Court that is missing under the Listening Devices Act (LDA), which the proposed bill would repeal.

Unsatisfied with this explanation, Mr Smith said: “It is important for our police to have a modern facility to properly investigate the kind of digital crimes that goes on, but it is wrong of the government to be rushing this through Parliament.

“What’s the rush and why the crisis in bulldozing it through? Of course, we must be good global citizens and join with other countries in fighting trans-border crime such as human trafficking, drug trafficking, money laundering, etc, but because this is going to so dramatically impact our lives, just like there was a referendum and consultation on gambling, consultation and referendum on constitutional amendments, five years of consultation on a Freedom of Information Act - we need time for the public to properly consider and engage with the government on this spy bill.”

He continued: “This bill is a dramatic change from the Listening Devices Act because it allows a third party to intercept communications, ie, not the people communicating. Right now under the LDA, at least one person must consent to the recording. This (proposed bill) is also unconstitutionally retroactive because once the police gets into your emails, they can go backwards, decades to see what you’ve done or said and can use past activities for future prosecutions and investigations. Once you’re in to the digital environment of a person, you can go backwards and there’s no protection from past activity and scrutiny. That’s the big mischief here. A smart IT or cyber person, once they’re in your email, they can leave a virus or some kind of digital hook that allows them to remain in there forever without anyone knowing. The Supreme Court judge won’t have the expertise or ability to supervise the interceptions so once the government or IT expert gets into your emails, they’re in there forever. There’s no guarantee they’ll every get out. They will know your entire digital history, past and present.”

Under the bill, a person who intentionally intercepts a “communication in the course of its transmission by means of a public postal service or a communications network commits an offence, and is liable on summary conviction to a fine not exceeding fifty thousand dollars or a term of imprisonment not exceeding four years, or to both.”

Mr Smith said this is unconstitutional.

“The constitution provides that every person is entitled to a jury trial for indictable offences, that is felonies as opposed to summary, misdemeanour offences. In Canada and the United States, anyone exposed to an offence which carries more than six months imprisonment is constitutionally entitled to a jury trial.

“I have litigated this issue all the way to the Privy Council where the government in the 1980s allowed people to be convicted by a magistrate for drug trafficking but then sent to the Supreme Court to be sentenced as if they were tried by a jury and sentenced for up to life imprisonment. The Privy Council ruled the amendment to the Drug Act to be unconstitutional. It set an upper sentencing limit only in drug trafficking cases of five years for a magistrate. In all other cases a magistrate is limited to six months. What’s been happening is that both the FNM and the PLP have been increasing the penalties for summary offences and increasing which is unconstitutional. The reason it is unconstitutional is that magistrates are appointed by the executive and they have no security of tenure whereas Supreme Court judges are there until retirement and the executive has no ability to remove them.”

Comments

birdiestrachan 7 years, 4 months ago

The outspoken QC must be very much afraid after he was taped saying mean and disrespectful things about the Bahamas and black people. They he cries like a baby and tries to excuse himself by saying he was teased at school.

realfreethinker 7 years, 4 months ago

birdie birdie,when will you bring something of substance to the table. Are you slow,or handicapped?

Voltaire 7 years, 4 months ago

And the relevance of that to this Bill is what? Honestly, the PLP could be spending their (or probably our) money better on a different propagandist. Birdie, if you worked for my company, you would have been sent home long time!

DEDDIE 7 years, 4 months ago

This government has no shame! Wasn't it just last year when a government minister felt that it was proper to read someone else's private email in parliament.

TalRussell 7 years, 4 months ago

Comrades! Things you know would have happened if only Minister Freddy could have had his way.
The minister would have taken to branding the King's Counsel with the mark of the beast - and then proceeded to have shoved a GPS tracking chip - right up into the sanctuary the K.C's rectum.

The_Oracle 7 years, 4 months ago

All legislation passed since 1992 has included summary conviction with penalties, Laws amended and passed by both FNM and PLP governments. Not that I ever want to be convicted by a Judge but to be convicted by a political minister of government is particularly disturbing. Constitutional rights mean nothing apparently.

SP 7 years, 4 months ago

................................................... "PLP All The Way" .............................................................

Well_mudda_take_sic 7 years, 4 months ago

This is all about the Crooked Christie-led corrupt PLP government attempting to suppress by intimidation the voices of political opposition in all forms of media in the run up to the next general election. The deteriorating feeble and feckless mind of Christie is now showing signs paranoia.

Alex_Charles 7 years, 4 months ago

Christie is starting to look like Mugabe. Oh wait Bahamians like Mugabe. Gotta love Bahamians, we're a confused lot

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