Access
to telephone records may be as easy as a landmark case that sets a legal
precedent.
The
Court of Appeal on Friday May 29th 2015 recently handed down a
landmark ruling in the matter of INDECOM vs Digicel (Jamaica)
Limited as reported in the article “Appeals
Court Rules Digicel Was Right In Refusing To Hand Over Call Data To INDECOM”,
published Friday May 29, 2015, The
Jamaica Gleaner.
This
ruling that the Court of Appeals upheld was Declaration 6 that was originally
handed down by Supreme Court Judge Mangatal on Sunday June 30th
2013.
It
basically states that Digicel had the right to refuse INDECOM access to Digicel
Call Data Records and Subscriber Details for several phone numbers related to
the investigation into the 2009 shooting death of Entertainer Robert “Kentucky
Kid” Hill. However, Digicel has to comply with INDECOM and the JCF if the
information requested was related to an ongoing Criminal investigation.
This
as the notice issued by INDECOM to Digicel on Tuesday September 27th,
2011 did not specify the purpose of the information that INDECOM was requesting
as detailed in the article “Court of Appeal
rules INDECOM entitled to phone records for criminal investigations”,
published 2015-05-29, Go-Jamaica.
Digicel vs INDECOM –
Victory for Digicel as Right to Privacy gets trampled upon
INDECOM
had made their request under Section 21 of the INDECOM Act requesting to Digicel's
Lawyers Maurice Manning and Michelle Phillips requesting that
they hand over the
Digicel Call
Data Records and Subscriber Details as detailed in the article “Court of Appeal
rules INDECOM entitled to phone records for criminal investigations”, published
2015-05-29, Go-Jamaica.
Digicel
took legal counsel and stated that albeit willing, they could not do so under
Telecommunications
Act and the Interception of Communications Act.
After an out-of-court settlement failed to resolve the issue as Digicel was
holding on to their hard-end, they eventually got a ruling from Supreme Court
Judge Mangatal, titled Declaration 6, stating that the Telecom Provider
did not have to comply with the request.
At
this point INDECOM got vexed and decided to take their case to the Court of
Appeal. However, they upheld Declaration 6 from Supreme Court Judge
Mangatal which started that Digicel did not have to give INDECOM the
information requested, except if is in the furtherance of a Criminal
investigation.
This
is a victory for Telecom Providers but marks a troubling day for Jamaicans, as
it means that if a criminal investigation arises, the JCF can request their
Telecom Records as part of their Criminal investigation.
Effectively,
my fellow Jamaicans, we have no real right to privacy under Section Three of
the Constitution as well as the Charter of Rights and Freedoms.
Digicel vs INDECOM and Call
Subscriber Data Records - How the Jamaican Police can use Mobile phone
Records to convict you of a Crime
Apparently
the lawyers representing INDECOM
Terrence Williams and Rhona Morgan assumed that as a GOJ
(Government of Jamaica) body, they could force compliance from Digicel, being
as the company's image was one that saw them as exercising Social Justice.
Thus,
they'd comply, otherwise it would appear in the eyes of the Public as if they
were shielding a potential suspect or accused central to a Police
investigation, contrary to the image created by the Digicel Foundation.
An
example of this public image of Digicel being a doer of Social Justice is
Digicel's donation of Water Tanks during the 2014 Drought to several Schools
islandwide as noted in my blog article
entitled “Digicel
CEO Barry O'Brien donates 3 650-Gallon Tanks to Downtown Schools - How the ALS
Ice Bucket Challenge is Not Cool as it Wastes Ice Water during a Drought”.
INDECOM,
however, had made a Procedural error when they requested the Digicel Call Data
Records and Subscriber Details for the purpose of an
investigation.
This
is very similar to the procedural error made by the BCJ (Broadcasting
Commission of Jamaica) when they requested the forty nine (49) Cable Operators
to remove nineteen (19) Cable channels as explained in my blog article entitled
“Jamaican
Cable Providers get 3 month Extension – How to win General Election 2017 and
Why OPM can overrule @BCJamaica for Procedural Error”.
The
implication of the legal ruling, however, should send chills down your spine.
JCF can request Mobile
Phone information – Proof on Criminal Investigation Required
Declaration
6 handed down by Supreme Court Judge Mangatal and upheld by the Court of Appeal
that INDECOM will go down in Telecoms Legal History! It also marks a troubling
day for Jamaicans as it means that Section Three of the Constitution as well as
the Charter of Rights and Freedoms has been brushed aside by the Ministry of
National Security, the Ministry under which INDECOM and the JCF fall!
It
technically implies that JCF can request Mobile Phone Call Data while doing a
criminal investigation aside from call Digicel or LIME Customer Care and
registering a SIM (Subscriber Identification Module) to access Call Records as
explained in my blog
article entitled “How
to Register your SIM Card and get the PUK1 and access Digicel’s Phone Calling
Records”.
Simply
put, you need to be more careful of the kind of information that you store on your
smartphone, be it contact information as well as more personal information such
as photographs, Video and Audio Recordings as explained in my blog article
entitled “The
Reason why I don't like Smartphones - Location Privacy and How to disable
Location Services on Android and iOS”.
Recently,
it was revealed that the NSA (National Security Agency) has the power to
remotely control your smartphone, with limitations of course as explained in my
blog article
entitled
In
fact, they actually had plans to use access to certain Apps to spy on persons
of interest in China, the Middle East and South and Central Asia as explained
in my Geezam blog entitled
Albeit
their power may be curtailed, the US Government via the CIA (Central
Intelligence Agency), the NSA (National Security Agency) and the FBI (Federal
Bureau of Investigations) do have a legal right to access your personal Data, being
as it technically doesn’t belong to you.
So
will the Jamaican Police start spying on Jamaicans in a manner similar to the
NSA? Thoughts to ponder.....
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