The snooping lacuna

Friday’s revelations on government snooping by the world’s second-largest mobile telephony company have made headlines the world over, but it has also brought to light a serious lacuna, or, rather, a gaping hole, in Maltese legislation on phone tapping.

The problem is that Malta is one of the few countries that have absolutely no judicial oversight when it comes to the tapping of phones, internet, email or any other kind of communication. To engage in such practices, there is no need for a judicial warrant, only a warrant from the minister responsible for the Malta Security Services, which, in this case, is the home affairs minister, or the Prime Minster himself. Short of a ministerial warrant, which remains open for a sixmonth period, the power to issue such warrants can be done by proxy in the name of the minister in the form of an emergency warrant that remains valid for two days.

There is no judicial oversight at the time of the commission of the warrant or after the fact, or indeed any other kind of reasonable oversight. Nor is there any way of quantifying at least the raw numbers of the interceptions enacted since Maltese law makes the disclosure of any aspect of how interception is conducted illegal.

This state of affairs is shared by only a handful of the 29 countries in which the company in question operates. Like Malta, the disclosure of any data related to telephony interceptions is also prohibited in Turkey, Qatar, South Africa, India, Egypt, and Albania. In the EU such disclosures are prohibited in Hungary and Romania.

Given that situation, one really has no idea how much, or, for that matter, how little, the Maltese public is being snooped upon by its own government. This certainly does not mean that the Maltese popula- tion is being spied upon en masse - it only means that as matters stand no one really has any idea of the extent of the practice.

There is a Security Committee established – comprising the Prime Minister, the Leader of the Opposition, the home affairs minister and the head of the Malta Security Services – but this is the only form of oversight there is and the information shared in that committee is scant.

But before anyone jumps to unreasonable conclusions, we are not calling into question the current administration of the country or the minister responsible, they have merely inherited this situation. This is by no means a new menace to Maltese citizens’ right to privacy, which is, after all, a fundamental human right - this has been the state of play for many years now. It was the same under previous administrations and it has been the status quo for far too long now.

The fact that the operations of the Security Services on the whole require secrecy is granted, national security is the epitome of the national interest. But there certainly needs to be some kind of oversight to the system, judicial or otherwise, as long as that oversight is completely independent of the government.

As matters stand, the phone tapping modus operandi is a completely closed system in the hands of the minister and the minister alone, barring intervention by the Prime Minister.

As matters currently stand, at law in the Security Services Act, the Prime Minister appoints a Commissioner for the Security Services, who must be a person who has held the position of judge of the superior courts of the position of Attorney General. If no Commissioner is appointed, and there is no such Commissioner appointed to our knowledge, the position automatically falls to the current Attorney General.

In terms of the Security Services Act, “The Commissioner shall keep under review the exercise by the Minister of his powers…In the discharge of his functions under the Act, the Commissioner shall act in his individual judgment and shall not be subject to the direction or control of any other person or authority and shall not be liable to be questioned by any court”.

This is all well and good but the problem here is that a person appointed by the Prime Minister would by definition be a government appointee, while even the Attorney General is the legal counsel to the state.

In these terms, judicial oversight is the best option because it is only the judiciary that cannot be removed by the government at will - that requires a two-thirds parliamentary majority.

We are not saying that there is abuse in the system but, theoretically, if there is abuse no one would be any the wiser. All we have is the government’s word for it and, unfortunately, that is not enough with any government the world over. In the wake of the Edward Snowden and NSA scandal, Malta needs to learn from the best practices in other countries and implement those practices. But there will be no reason to overhaul a system that has worked quite well for successive governments until the people cal for it.

It is about time that some sort of independent oversight be applied to the phone interception warrant system - which also covers internet and email, radio and even post. This should no longer be left to the judgement of one single individual who at no point is required to explain his or her actions to anyone, save possibly the Prime Minister. Such oversight needs to be placed in the hands of an independent member of the judiciary – no more and no less.