Phone tapping: Urgent need for global methods to maintain highest standards
Acouple of weeks back, the Sunday Times reported in its front page that the Head of the Criminal Investigation Department (CID) at a meeting of Senior Police Officers with members of the Police Commission revealed that the Special Investigation Unit (SIU) which functions directly under the Inspector General of Police (IGP) wanted details of their mobile telephone numbers from the Service Providers. According to media reports it has come to light that the IGP had sought to use a machine handed over to the Police by the Australian Federal Police which is capable of extracting information held on mobile phones.
In the meantime some members of the Parliamentary Committee on Public Enterprises (COPE) alleged that records of their telephone conversations had been submitted to the Commission of Inquiry (COI) into the Bond issue. However the COI clarified in a statement that no telephone records of any MPs were obtained nor examined, and the process was based on the data extracts from telephones and other electronic devices used by former Governor of Central Bank.
Monitoring of telephone conversations is usually covered by respective laws in the country. Telephone tapping is strictly regulated in many countries especially in all developed democracies to safeguard privacy of telephone users. Telephone tapping often must be authorised by a Court, and is normally only applied when evidence shows it is not possible to detect criminal or subversive activity in less intrusive ways. In many countries however, permission for telephone tapping is easily obtained on a routine basis without further investigation by the Court or other entity granting such permission. Illegal or unauthorised telephone tapping is often a criminal offence.
Intelligence collecting through clandestine means is aided by a staggering array of instruments for signal intelligence, electronic intelligence and photo intelligence worldwide. Opposition parties in Sri Lanka have over a period of time alleged that their phones were tapped by government machinery at the behest of the ruling party. The intelligence agencies have also relied on telephone conversations for evidence. Many years ago, a tap had to be installed by technicians linking circuits. Now with the digital technology tapping is far simpler and can also be monitored by computer.
According to Section 38 (3) of the Telecommunications Ordinance every person who unlawfully and wilfully listens to a telephone conversation between two other persons shall be guilty of an offence and upon conviction be liable to a fine or a term of imprisonment. Likewise the Constitution itself provides a Chapter on fundamental rights which forbids the tapping of telephones of those persons involved in their lawful occupations.
The practice of telephone tapping in Sri Lanka could be traced back to the late 1950s. Telephone tapping is illegal in Sri Lanka but could be carried out under a Court order. Furthermore it is not ethical to listen to the conversation between two people. Tapping of telephones can be done in only on National Security grounds with the approval of the Minister of Defence. Police must first obtain a wire tap order before eavesdropping on any phone conversations. This is similar to a warrant. Police must prove to a judge that they have probable cause to believe that tapping your phone lines will help them to solve serious crime, such as drug trafficking, money laundering or terrorism.
Over two decades ago, the Ministry of Defence exercised some sort of control over phone tapping. With the appointment of non specialists as Heads of Intelligence the power of the Ministry officials was steadily eroded clearing the path for the intelligence Chiefs themselves to operate as they wished. Besides the Ministry failed to assert its authority. Consequently phone taps were carried out indiscriminately.
In a country where there is a real threat to National Security the intelligence service is reportedly used to eavesdrop on political gossip which has no relevance to National Security instead of making investigations about real threats. It is a matter of regret that Heads of Intelligence reportedly spent their time listening to gossip while they are responsible for National Security. If action is not taken to arrest this situation the day is not far when illegal tapping will deteriorate to such an extent that one could not rule out the fact that it could be done for monetary gain
In the United Kingdom there is control exerted by the Home Secretary over the granting of telephone intercept warrants to the Director General of Intelligence and Security. It is a procedure that was put on a statutory basis. Nevertheless they say it is unheard of for the Home Secretary to refuse such a request. In India Section 5 (2) of the Indian Telegraph Act of 1885 enables the Central Government or a State Government to intercept communications provided it is required in the interests of the security of State and to prevent incitement to the commission of an offence. A petitioner challenged the constitutional validity of this section stating that there should be sufficient procedural safeguards to rule out the arbitrary exercise of this section.
The Supreme Court of India held that the right to privacy is a part of the right to life and personal liberty enshrined in the constitution. The right to hold a telephone conversation in the privacy of one’s home or office without interference could certainly be claimed as a right to privacy. Telephone tapping would therefore breach article 21 unless it is permitted under the procedure established by law. In the light of this judgement tapping of phones is now subject to restrictions in India.
Even in France there were allegations that the Chirac Government bugged phones of its coalition allies. Wire tapping is legal in France only if formally authorised by a special commission. In July 1991 France passed legislation known as “the Cresson Law” which made telephone tapping illegal except in cases of national security or to prevent terrorism and organised crime.
It will be good for the Government to adopt the aforementioned systems practised in some of the countries mentioned to maintain the highest standards of propriety broadening democratic freedoms to act for a drastic change in this disgraceful state of affairs. A former Senior Intelligence Officer Via email