Illegally intercepting communications

With Internet Communications Technology (ICT) transforming the world as we know it, it is not surprising that the technology would be abused for purposes for which it is not intended. There will always be those who will seek to subvert mechanisms for their own gain and nefarious purposes. In the instance of intercepting communications, so as to gain an advantage in what economists call the information asymmetry, it probably began with eavesdropping at keyholes.

As the technology of communication moved from the oral to the written form, “steaming open” letters became common for the curious – even as various “seals” attempted to prevent this intrusion on privacy.

The telephone speeded up the communication cycle but also brought in the “wiretap”, in which a device “intercepted” the electrical pulse carrying the message and recorded it for later listening. In light of what had preceded it, the invention of wireless communication almost inevitably brought into being new ways of capturing the message unbeknownst to the sender.

In the United States, these interceptions received early legal censure as the US Supreme Court, from the “penumbra” of the US Constitutional Bill of Rights, created rights to “privacy” of individuals that were violated. These were severely punishable. In Guyana, as argued by Anil Nandlall, then a lawyer in private practice, Guyana did not have such laws of privacy on the books.

The comments were occasioned by calls from the People’s National Congress Opposition, because of an intercepted conversation between then Commissioner of Police (and now PNC MP) Winston Felix and PNC MP Basil Williams (now the PNC Chairman) in which the former was captured revealing very sensitive information to the latter, on a massacre in Agricola.

The subsequent debate on persons’ right of security in their communication and the Government’s need to intercept such communications for national security purposes was taken seriously by the Government when it passed the “Interception of Communications Act 2008”. The Act spelt out under which conditions the latter might be effectuated and violations of the former might be prohibited in Section 3.

Section 3(1) warns that “a person who intentionally intercepts a communication in the course of its transmission by means of a telecommunication system commits an offence and is liable on summary conviction to a fine not exceeding five million dollars and to imprisonment for a term not exceeding three years.”

This Monday, the owner of the Kaieteur News, Glenn Lall, submitted a recording of a telephone conversation between the Attorney General and one of his senior reporters. In another section of the press, Lall is quoted as admitting, “Most of the reporters have equipment that has the capability of taping all incoming and outgoing calls.”

Since the reporter was acting as an agent of Lall, with equipment provided by Lall, Lall is unquestionably responsible for breaking the present law by “intentionally intercepting” a communication from another person.

In his newspaper, however, Lall claims that the “Interception of Communications Act 2008” has “no relevance since the communication (on his tape) was not intercepted.” This assertion, however, is clearly rebutted by Section 3(4): “For the purpose of subsection (1), a communication shall be taken to be in the course of transmission by means of a telecommunications system at any time when the system by means of which the communication is being or has been transmitted is used for storing the communication in a manner that enables the intended recipient to collect it or otherwise have access to it.”

Since Lall’s instrument was definitely part of a “telecommunications system” that was “transmitting” a “communication” and also used for “storing the communication in a manner that enables the intended recipient to collect it or otherwise have access to it”, there is absolutely no ambiguity as far as the law of the land is concerned, that the owner of the Kaieteur News illegally intercepted a communication. And he should face the consequences.