Digicel Jamaica vs INDECOM and How Jamaican Police can access to Call Subscriber Records

Access to telephone records may be as easy as a landmark case that sets a legal precedent.

The Court of Appeal on Friday May 29^th 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 30^th 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 27^th, 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

“NSA smartphone hack via the Baseband Processor - How NSA can remotely control your smartphone and Defense Against the Dark Arts”.

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

“NSA and Five Eyes Alliance in Project Irritant Horn Spying on Arab Spring Jihadists”.

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.....