New York Times | Pegasus Spyware: Shield or Sword?

What are the checks and bal­ances, the pros and cons of the Is­raeli pro­duced spy­ware Pe­ga­sus al­leged­ly be­ing used by the State? I asked Tim­o­thy Hamel-Smith, an em­i­nent lawyer and for­mer sen­ate pres­i­dent, to point us to the law

When Op­po­si­tion leader Kam­la Per­sad-Bisses­sar made the ex­plo­sive claim at a po­lit­i­cal meet­ing that the State is spy­ing on jour­nal­ists, judges, and par­lia­men­tar­i­ans with Is­raeli Pe­ga­sus spy­ware, it made one won­der if she had spy­ware of her own. Prime Min­is­ter Dr Kei­th Row­ley stren­u­ous­ly de­nied this ac­cu­sa­tion say­ing that tech­nol­o­gy was used for na­tion­al se­cu­ri­ty (hence the se­cre­cy around it) to pro­tect cit­i­zens and the State from crime, of­ten car­ried out us­ing cell phones some­times from with­in prison walls. Giv­en that spy­ware can be both a shield and a sword, we know that in the wrong hands and with­out checks and bal­ances, it can be a sharp in­stru­ment that rips across cit­i­zens’ de­mo­c­ra­t­ic rights to pri­va­cy

The Econ­o­mist (Ju­ly 2021) sound­ed this warn­ing on the spy­ware: ‘Richard Nixon was dis­graced for puny trans­gres­sions com­pared with what Pe­ga­sus is ca­pa­ble of and may al­ready have been used for.’

The mag­a­zine re­port­ed that a leaked Pe­ga­sus file in In­dia of a thou­sand peo­ple in­clud­ed the num­bers of up to 40 jour­nal­ists crit­i­cal of Mr Mo­di’s Gov­ern­ment. Very few peo­ple on that list ac­tu­al­ly en­dan­gered the State. This state in­fil­tra­tion of the Fourth Es­tate is cor­ro­sive to any democ­ra­cy

That said, T&T has among the high­est rates of homi­cide in a non-war­ring coun­try, a roar­ing arms and drugs trade, a widen­ing gang cul­ture, and we un­der­stand the State needs to col­lect ev­i­dence against crim­i­nals and in­ter­cept crim­i­nal ac­tiv­i­ty.

What are the checks and bal­ances, the pros and cons of the Is­raeli pro­duced spy­ware Pe­ga­sus al­leged­ly be­ing used by the State? I asked Tim­o­thy Hamel-Smith, an em­i­nent lawyer and for­mer sen­ate pres­i­dent, to point us to the law.

This is what he said: “The Con­sti­tu­tion of T&T pro­claims that all in­di­vid­u­als have a fun­da­men­tal right to re­spect pri­vate and fam­i­ly life. This right to pri­va­cy ex­tends to com­mu­ni­ca­tions un­less it is tak­en away by leg­is­la­tion shown to be rea­son­ably jus­ti­fi­able in a so­ci­ety that has a prop­er re­spect for the rights and free­doms of the in­di­vid­ual

“Un­der the In­ter­cep­tion of Com­mu­ni­ca­tions Act, it is an of­fence in T&T to in­ter­cept com­mu­ni­ca­tions of any per­son un­less such in­ter­cep­tion falls with­in cer­tain cat­e­gories, in­clud­ing:

In­ter­cep­tion car­ried out pur­suant to a war­rant is­sued by a judge

The in­ter­cep­tion is con­duct­ed by an “au­tho­rised of­fi­cer” in the in­ter­est of na­tion­al se­cu­ri­ty

a. for the pre­ven­tion or de­tec­tion of an of­fence for which the penal­ty is ten years or more

b. for the pur­pose of safe­guard­ing the eco­nom­ic well-be­ing of the State; or

c. to give ef­fect to any in­ter­na­tion­al mu­tu­al as­sis­tance agree­ment

Such a per­mit­ted in­ter­cep­tion may be used to ob­tain a war­rant and any ev­i­dence gath­ered is ad­mis­si­ble in ev­i­dence if the court con­sid­ers it com­plies with cer­tain spec­i­fied cri­te­ria

“In re­sponse to al­le­ga­tions of the in­tro­duc­tion of Pe­ga­sus Spy­ware, the PM has not de­nied that spy­ing is be­ing con­duct­ed in T&T. Re­gret­tably, I have not seen any ref­er­ence to the PM stat­ing that any such con­duct is be­ing con­duct­ed in ac­cor­dance with the laws of T&T. This must be done

“Ques­tions have arisen as to who is the ‘au­tho­rised per­son’ con­duct­ing such spy­ing. The ICA de­fines “au­tho­rised per­son” as mean­ing the Chief of De­fence Staff, the Com­mis­sion­er of Po­lice or the Di­rec­tor of Strate­gic Ser­vices Agency. An al­le­ga­tion has been made that spy­ing is be­ing con­duct­ed by a con­sta­ble ap­point­ed by the Min­is­ter of Na­tion­al Se­cu­ri­ty.

“Un­der Sec­tion 52 of the In­ter­pre­ta­tion Act, the Min­is­ter of Na­tion­al Se­cu­ri­ty may del­e­gate any oth­er pub­lic of­fi­cer or of­fi­cers to ex­er­cise that func­tion. As­sum­ing the Min­is­ter has made such a del­e­ga­tion, one would ex­pect the nec­es­sary Or­der to be an­nounced so the pub­lic would know to whom such au­thor­i­ty is vest­ed. It would be ap­pro­pri­ate for the Min­is­ter to con­sult with the Chief of De­fence Staff, the Com­mis­sion­er of Po­lice, or the Di­rec­tor of Strate­gic Ser­vices Agency and con­sid­er their rec­om­men­da­tions be­fore mak­ing such an or­der.

“Giv­en the abysmal de­tec­tion rate, I have no doubt that the po­lice need every help they can get to im­prove, re­sult­ing in more charges be­ing laid for of­fences. We have seen no such re­ports rel­a­tive to suc­cess­es fol­low­ing the use of spy­ing. In­deed, one hears of firearms be­ing seized by the po­lice but not of charges be­ing laid for such of­fences. In this con­text, the pub­lic has every right to be con­cerned about the mo­tive for spy­ing as it rep­re­sents a diminu­tion of their fun­da­men­tal right to pri­va­cy.”

T&T is a na­tion trau­ma­tised by crime, want­i­ng re­as­sur­ance be­yond the histri­on­ic po­lit­i­cal ex­changes–a griev­ing na­tion that los­es over 500 peo­ple to mur­der every year. We want re­as­sur­ance be­yond the histri­on­ic ex­changes and ev­i­dence that spy­ware is used as a shield and not a sword.