Pegasus Spyware: Shield or Sword?

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.