LEAD STORY
The Right to Privacy
By Debra Prendergast
Among the many questions now being raisedby of a far more alert local populace - because of the absenceof a Bill of Rights enshrined in the present constitution - isthe right to privacy from surveillance or the monitoring of telephone,e-mail and other electronic communications.
With the capabilities of electronic andtechnological advancement readily available to modern Cayman,it is reasonable to expect that private and public institutionsare installing the necessary equipment in order to monitor indiscriminateand unauthorised use of their equipment and time for personalbusiness.
For years, this issue has been activelydiscussed among many, to the point that at times, there has beenand continues to be paranoia that telephones are tapped by jealousor nosy enemies, the police or Cable & Wireless.
The issue of the monitoring of private e-mailwas raised on the local radio show, ëTalk Todayí byits host, Val Lichenstien, on Wednesday, 16 August. Mr. Lichensteinsaid that an e-mail sent to him by his sister at his e-mail addressat Radio Cayman had been intercepted and returned by GovernmentísComputer Services. He never received the message. However, hissister later informed him that she had received a message thather transmission was "not work related."
Following inquiries about this practicewithin the government service, several civil servants have indicatedthat they are aware that this occurs and have been told that ComputerServices has installed a software programme called "firewall"(see separate Government Information Services statement) whichis designed to block computer viruses from entering the systems.
Firewall is also designed to intercept orprevent the transmission of profanity, by detecting key words,it is explained. One civil servant explained that whilst workingin the Government Administration building, an e-mail was sentto her computer by a college roommate and she was later told thatit was intercepted, and returned with a message that the languagewas inappropriate. "I was surprised by this as I cannot imaginewhat would have been considered inappropriate language in themessage," she states.
In connection with this matter, once morethe issue is raised as to whether the - General Orders - Governmentísguidelines, whereby the terms of employment are regulated, referredto by one Civil Servant as ëthe governmentís bookof fearí. He questioned whether these regulations shouldoverride what would normally be considered illegal and or unethical.
Chapter 9, Section 24 of the General Ordersstates that " No officer shall put to private use any Governmentproperty. Particularly this applies to telephone calls, stationary,office machinery, and equipment." Section 3 of the same chapteraddresses the issue of the media, affirming, "No officer,whether he is on duty or leave of absence shall - allow himselfto be interviewed on questions of public policy or on any matterof a political or administrative nature or on any matters affectingthe administration or the security of any state or territory;or (4) speak in public or broadcast in any way on matters whichmay reasonably be regarded as of a political or administrativenature."
The question is, did Mr. Lichenstein, acivil servant, compromise his employer - the Government - by publiclyraising this issue through the media, the government-owned RadioCayman- not withstanding the fact that the e-mail in questionmay have been considered a private message sent to his place ofwork, in the like manner hundreds of other civil servants receiveprivate telephone calls and regular mail at their offices?
Issues such as these point to the CaymanIslandsí need for an Ombudsman, because, the question remainsas to who is qualified to determine what is private mail. Thereis the lingering doubt that computer software can correctly decipherwhat is private in text being transmitted - providing that thereis nothing profane in the language. It may therefore be safe toassume that a real person or individual would be reading the messageonce it has been selected by the computer as not being "workrelated". A senior government officer has confirmed thatthis is ìabsolutely not the case.î
General Orders does however, also containthe following proviso: Chap. (11) 4, "Provided that -(a)the provisions of this order shall not apply to an officer actingin pursuance of his official duties and with the prior permissionof the Governor and (b) that statements for publication of factualand technical information may be made by Principal Secretaries,Heads of Departments and other senior officers with prior permissionof the Governor."
On 23rd March 1993, an Invasion of PrivacyAct was passed unanimously in the Legislative Assembly followingthe introduction of a private members motion, 2/93. It was broughtand moved by then MLA, Mr. Gilbert McLean. Commenting on thisissue, he states, "It was felt that there was a need to protectcitizens by law from the invasion of privacy."
At the time that law was passed, the issuehad been raised that the use of scanners had become widespreadwith the capability of listening in to private telephone calls.It is a known fact, that the practice had become a favourite pastimefor many that were monitoring emergency calls including policetransmissions.
Although the use of audio transmission scannersand radar detection devices is now illegal, many people are concernedthat the change in cellular telephones from analog to digital,along with the increased use of cellular telephones, is far moreeasily monitored by similar scanning devices.
Public's skepticism about the security orprivacy of cellular telephone conversations continues.
When contacted for a comment on the issueof ìtapped telephones,î a Cable & Wireless spokespersonstated that, ìCable & Wireless understands that theinterception of e-mail has become a common practice with manybusiness but it really has nothing to do with any policy or practiceof our Company.î
Further inquiries made by Cayman Net Newshave confirmed that many local companies have installed similarsoftware within their systems. The question then remains as towhom - if anyone, is reading personal electronic mail and howwidespread is this practice.
It raises the ethical question, of whento and who exactly is the judge of what is considered private,personal or work-related electronic mail. This practice certainlydoes not leave a person feeling very secure or comfortable, knowingthat messages can be intercepted, censored or stopped altogetherbefore it even reaches an individualís computer.
The Officer in charge of Media Relationsfor the Royal Cayman Islands Police (RCIP), PC Mike Cansell saidthat although the RCIP was not aware of the specifics of the interceptionof electronic mail in the case of civil servants who have beenaffected or the policy of the Computer Services, as far as thePolice Department is concerned, "in regards to the wire tappingof telephones it is illegal and is not a practice of the policedepartment."
Commenting on the issue, one local attorneyindicated that, "with the today's sophisticated technology,almost anything can be done. However, whether it can be used asevidence in a court of law is another matter and there are a numberof legal precedents supporting this even locally. Even then, legalarguments can be raised under the rules of evidence and issuesof trespassingî, he concluded.
In a one high profile case, whereby ëinvasionof privacyí played a significant role , a local businessmantook his argument all the way to the Privy Council in Englandand won in a precedent setting ruling, which cost the Cayman IslandsGovernment nearly one million dollars (US$1,000,000) in damages.
The case dealt with what might in layman'sterms be called an invasion of privacy, illegal search and seizure,whereby the police entered the premises of the local businessman,conducted a search and removed his personal documents withoutthe support of a legal search warrant.
Cases like these serve as reminders thatsociety has laws not only to punish the guilty - but also to protectthe innocent - and a person should always be considered innocent,until proven guilty by a court of law.
"Firewall" System Protects Government'sComputers
In accordance with world-wide business practices,Government's Computer Services Department uses software to automaticallyand indiscriminately check the content of all incoming e-mailsto ensure that they do not contain viruses or profanity.
This method, commonly called a "firewall," is what protectsGovernment from potentially crippling viruses such as the 'I LoveYou' bug. That virus made global headlines and caused millionsof dollars in damage said Assistant Director, Wesley Howell.
The firewall also helps to maintain a level of professional communicationspractices on a system paid for and operated with public funds,Mr. Howell said.
His comments come after Computer Serviceswas publicly criticised for using the software because it rejectedan e-mail message, sent from outside Government, to a civil servant.
"If an incoming e-mail is determinedto contain either viruses or profanity, it is automatically returnedto sender," Mr. Howell outlined. "The software thenlogs the date and time of the message; the sender; the intendedreceiver; the subject; and the rule that was violated - eitherthat it contained a virus or profanity."
He emphasised that the message's contentis not recorded, and that no human interaction takes place inthe process. "The software is not designed for staff membersto read the e-mails," Mr. Howell explained. "Furthermore,thousands of e-mails are transmitted daily through Government'ssystem, including messages from around the world. Even if we wantedto, it would be impossible for our staff members to read."