The Interception of Communications Act, 2010 · 2010. 12. 15. · AN ACT to provide for and about the interception of communications, the acquisition and disclosure of data relating

AN ACT to provide for and about the interception ofcommunications, the acquisition and disclosure ofdata relating to communications, the acquisition ofthe means by which electronic data protected byencryption or passwords may be decrypted oraccessed and other related matters

[Assented to 3rd December, 2010]

First Session Tenth Parliament Republic of Trinidad and Tobago

REPUBLIC OF TRINIDAD AND TOBAGO

Act No. 11 of 2010

[L.S.]

WHEREAS it is enacted by section 13(1) of theConstitution that an Act of Parliament to which thatsection applies may expressly declare that it shall haveeffect even though inconsistent with sections 4 and 5 ofthe Constitution and, if any Act does so declare, it shallhave effect accordingly:

And whereas it is provided in section 13(2) of theConstitution that an Act of Parliament to which thatsection applies is one the Bill for which has been passedby both Houses of Parliament and at the final votethereon in each House has been supported by the votesof not less than three-fifths of all the members of thatHouse:

And whereas it is necessary and expedient that theprovisions of this Act shall have effect even thoughinconsistent with sections 4 and 5 of the Constitution:

ENACTED by the Parliament of Trinidad and Tobago asfollows:

PART IPRELIMINARY

1. This Act may be cited as the Interception ofCommunications Act, 2010.

2. This Act shall have effect even though inconsistentwith sections 4 and 5 of the Constitution.

3. This Act shall come into operation on such date tobe fixed by the President by Proclamation.

4. This Act binds the State.

5. (1) In this Act—“authorized officer” means the Chief of Defence

Staff, the Commissioner of Police or theDirector of the Strategic Services Agency;

2 No. 11 Interception of Communications 2010

Preamble

Short title

Enactment

Act inconsistentwith Constitution

Commencement

Act binds the State

Interpretation

“communications” includes anything comprisingspeech, music, sounds, visual images ordata of any description or signals betweenpersons, between a person and a thing orbetween things or for the actuation orcontrol of any apparatus, and whether ornot done in real time;

“disclosure order” means an order undersection 15 requiring the disclosure of aprotected communication;

“electronic signature” means anything inelectronic form which—

(a) is incorporated into, or otherwiselogically associated with, anyelectronic communication or otherelectronic data;

(b) is generated by the signatory orother source of the communicationor data; and

(c) is used for the purpose of facilitating,by means of a link between thesignatory or other source and thecommunication or data, theestablishment of the authenticity ofthe communication or data, theestablishment of its integrity, orboth;

“intercept”, in relation to a communication,means listening to, monitoring, viewing,reading or recording, by any means, such acommunication in its passage over atelecommunications network without theknowledge of the person making or receivingthe communication;

“Judge” means a Judge of the High Court;“key” in relation to any protected communication,

means any key, code, password, algorithm

No. 11 Interception of Communications 2010 3

or other data the use of which (with orwithout other keys)—

(a) allows access to a protectedcommunication; or

(b) facilitates the putting of a protectedcommunication into an intelligibleform;

“Minister” means the Minister to whom theresponsibility for national security isassigned;

“offence” means any offence under this Act orany other offence where the penalty,whether on summary conviction orconviction on indictment, is imprisonmentfor five years or more, and includes anoffence where death, imprisonment for theremainder of a person’s natural life or lifeimprisonment is the penalty fixed by law;

“private communication” means a communicationthat is transmitted or being transmitted bythe sender, to a person intended by thesender to receive it, in circumstances inwhich it is reasonable for the sender andthe intended recipient to expect that thecommunication will not be intercepted byany person other than the intendedrecipient, and includes any radio-basedtelephone communication that is treatedelectronically or otherwise for the purposeof preventing intelligible reception by anyperson other than the intended recipient;

“private telecommunications network” means anytelecommunications network that, withoutitself being a public telecommunicationsnetwork, is a network in relation to which thefollowing conditions are satisfied:

(a) it is attached, directly or indirectlyand whether or not for the purposeof the communication in question,


to a public telecommunicationsnetwork, and there is apparatuscomprised in the network which isboth located in the State and used,with or without other apparatus,for making the attachment to thepublic telecommunicationsnetwork; or

(b) it is operated without anyinterconnection to a publictelecommunications network;

“protected communication” means any electronicdata which, without the key to thecommunication, cannot, or cannot readily,be accessed or put into an intelligible form;

“public telecommunications network” means atelecommunications network used by anyperson to provide telecommunicationsservices to the public and includes anetwork whereby the public can send orreceive communications to or from—

(a) anywhere in the State;(b) anywhere outside of the State,

and includes a network commonly knownas a public switched telephone network;

“telecommunications” includes the transmission,emission or reception of signals, writing,pulses, images, sounds or otherintelligence of any kind by wire, wireless,optical or electromagnetic spectrum or byway of any other technology;

“telecommunications network” means a systemor any part thereof, whether wholly orpartly in Trinidad and Tobago orelsewhere, used for the provision of atelecommunications service;


“telecommunications service” means a serviceprovided by means of a telecommunicationsnetwork to any person for the transmissionor reception of communications from, to orwithin the State without change in thecontent or form, regardless of the technologyused to provide such service;

“terrorist act” has the meaning assigned to it bysection 2(1) of the Anti-Terrorism Act,2005;

(2) The functions of an authorized officer under thisAct may be exercised by him in person or through anofficer authorized by him in writing acting under and inaccordance with his general or special directions.

(3) In this Act, “the interest of national security”shall be construed as including the protection of theState from threats of espionage, sabotage, any terroristact or subversion.

PART II

INTERCEPTION OF COMMUNICATION

6. (1) Except as provided in this section, a person whointentionally intercepts a communication in the courseof its transmission by means of a telecommunicationsnetwork commits an offence and is liable on summaryconviction to a fine of five hundred thousand dollars andto imprisonment for seven years.

(2) Notwithstanding any other law, a person doesnot commit an offence under this section if—

(a) the communication is intercepted inobedience to a warrant issued by a Judgeunder section 8 or 11;


Act No. 26 of 2005

Prohibition ofinterception

(b) the communication is intercepted by anauthorized officer—

(i) in the interest of national security;

(ii) for the prevention or detection ofan offence for which the penaltyon conviction is imprisonment forten years or more, and includes anoffence where death, imprisonmentfor the remainder of a person’snatural life or life imprisonmentis the penalty fixed by law;

(iii) for the purpose of safeguardingthe economic well-being of theState; or

(iv) for the purpose of giving effect tothe provisions of any internationalmutual assistance agreement,

and any communication so intercepted maybe used for the purpose of an applicationunder section 8 or 11, but shall not beadmissible as evidence in any criminalproceedings;

(c) he has reasonable grounds for believing thatthe person to whom or by whom thecommunication is transmitted consents tothe interception;

(d) the communication is intercepted as anordinary incident in the course of employmentin the provision of telecommunicationsservices;

(e) the communication is not a privatecommunication;

(f) the communication is a stored communicationand is acquired in accordance with anyother law; or


(g) the interception is of a communicationtransmitted by a private telecommunicationsnetwork and is done by a person who has—

(i) a right to control the operation oruse of the network; or

(ii) the express or implied consent of aperson referred to in subparagraph (i).

(3) The Court by which a person is convicted of anoffence under this section may order that any deviceused to intercept a communication in the commission ofthe offence shall be forfeited and disposed of as theCourt may think fit.

(4) For the purpose of subsection (1), a communicationshall be taken to be in the course of transmission bymeans of a telecommunications network at any timewhen the network by means of which the communicationis being or has been transmitted is used for storing thecommunication in a manner that enables the intendedrecipient to collect it or otherwise have access to it.

(5) Information lawfully intercepted under thisAct is exempt information for the purposes of theFreedom of Information Act.

7. (1) Subject to subsection (2), a person who possesses,sells, purchases, or manufactures a device or anycomponent thereof, knowing that its design renders itprimarily useful for unauthorized interception ofprivate communications, commits an offence and isliable on summary conviction to a fine of two hundredand fifty thousand dollars and to imprisonment for fiveyears.

(2) Subsection (1) does not apply to—(a) a person in possession of such a device or

component under the direction of anauthorized officer in order to assist thatofficer in the course of his duties under thisAct;


Chap. 22:02

Possession ofinterception devices

(b) a person in possession of such a device orcomponent for the purpose of section 6(2);

(c) any other person in possession of such adevice or component under the authority ofa licence issued by the Minister.

(3) A licence issued for the purpose of subsection(2)(c) may contain such terms and conditions relatingto the possession, sale, purchase or manufacture of adevice or component described in subsection (1) as theMinister may prescribe.

8. (1) Subject to this section, an authorized officermay apply ex parte to a Judge for a warrant authorizingthe person named in the warrant—

(a) to intercept, in the course of their transmissionby means of a public or private telecom-munications network, such communicationsas are described in the warrant; and

(b) to disclose the intercepted communication tosuch persons and in such manner as may bespecified in the warrant.

(2) A Judge shall not issue a warrant under thissection unless he is satisfied that—

(a) the warrant is necessary—(i) in the interests of national security;

or(ii) for the prevention or detection of

any offence where there arereasonable grounds for believingthat such an offence has been, isbeing or is about to be committed;

(b) information obtained from the interceptionis likely to assist in investigations concerningany matter mentioned in paragraph (a);

(c) other investigative procedures—(i) have not been or are unlikely to be

successful in obtaining the


Warrant forinterception

information sought to be acquiredby means of the warrant;

(ii) are too dangerous to adopt in thecircumstances; or

(iii) having regard to the urgency of thecase, are impracticable;

(d) it would be in the best interest of theadministration of justice to issue thewarrant; and

(e) the interception of communications to beauthorized by the warrant is proportionateto what is sought to be achieved by suchinterception.

(3) An application for a warrant under this sectionshall, subject to section 11, be in the form set out inSchedule 1 and be accompanied by—

(a) a declaration in the form set out in Schedule2 deposing to the following matters:

(i) the name of the authorized officerand the entity on behalf of whichthe application is made;

(ii) the facts or allegations giving riseto the application;

(iii) sufficient information for a Judgeto issue a warrant on the terms setout in section 9;

(iv) the period for which the warrant isrequested;

(v) the grounds relied on for the issueof a warrant under subsection (2);and

(vi) if the applicant will be seeking theassistance of any person or entityin implementing the warrant,sufficient information for a Judgeso to direct in accordance withsection 9(3); and


(b) a statement signed by the Minister wherethe warrant is applied for on the ground ofnational security, authorizing the applicationon that ground.

(4) A declaration under subsection (3)(a) is deemedto be a statutory declaration under the StatutoryDeclarations Act.

(5) The records relating to every application for awarrant or the renewal or modification of a warrantshall be sealed, until otherwise ordered by the Court.

(6) A person who discloses the existence of awarrant or an application for a warrant, other than to aperson to whom such disclosure is authorized for thepurpose of this Act, commits an offence and is liable onsummary conviction to a fine of fifty thousand dollarsand to imprisonment for three years.

9. (1) In this section, “address” includes a location,e-mail address, telephone number or other number ordesignation used for the purpose of identifyingtelecommunications networks or apparatus.

(2) A warrant shall authorize the interception of—(a) communication transmitted by means of a

public or private telecommunicationsnetwork to or from one or more addressesspecified in the warrant, being an address oraddresses likely to be used for the transmissionof communications to or from—

(i) one particular person specified ordescribed in the warrant; or

(ii) one particular set of premises sospecified or described; and

(b) such other communications, if any, as isnecessary to intercept in order to interceptcommunications falling within paragraph (a).


Chap. 7:04

Scope of warrant

(3) A warrant shall specify—(a) the identity, if known, of the person whose

communications are to be intercepted;(b) the nature and address of the telecommuni-

cations equipment in respect of whichinterception is authorized;

(c) a description of the type of communicationssought to be intercepted, and, whereapplicable, a statement of the particularoffence to which it relates;

(d) the identity of the agency authorized tointercept the communication and the personmaking the application; and

(e) the period for which it is valid.

(4) Where the applicant intends to seek theassistance of any person or entity in implementing thewarrant, the Judge may, on the applicant’s request,direct appropriate persons or entities to furnishinformation, facilities, or technical assistance necessaryto accomplish the interception.

(5) A warrant may contain such ancillaryprovisions as are necessary to secure its implementationin accordance with this Act.

10. (1) Subject to subsections (2) and (3), a warrantshall be issued for such period as may be specified in it,not exceeding ninety days (in this section referred to as“the initial period”).

(2) A Judge may—(a) on an application by an authorized officer

before the expiration of the initial period;and

(b) if satisfied that a renewal of the warrant isjustified in any particular case,

renew the warrant for such period as he may specify init (in this section referred to as “the first renewalperiod”) not exceeding ninety days from the date ofexpiration of the initial period.


Duration of warrant

(3) Where a Judge is satisfied that exceptionalcircumstances exist which would justify a renewal of thewarrant beyond the first renewal period, the Judge may,on an application by an authorized officer before theexpiration of that period, renew the warrant for suchfurther period as he may specify in it, not exceedingninety days from the expiration of the first renewalperiod.

(4) An application for a renewal of a warrantunder subsection (2) or (3) shall be in writing andaccompanied by a declaration deposing to thecircumstances relied on as justifying the renewal of thewarrant.

(5) If, at any time before the end of any of theperiods referred to in this section, a Judge is satisfied,after hearing representations made by the authorizedofficer, that a warrant is no longer necessary asmentioned in section 8(2), he shall revoke the warrant.

(6) Notwithstanding subsection (3), an authorizedofficer may make an application for a new warrant.

11. (1) Where a Judge is satisfied that the urgency ofthe circumstances so requires—

(a) he may dispense with the requirements fora written application and a declaration andproceed to hear an oral application for awarrant; and

(b) if satisfied that a warrant is necessary asmentioned in section 8(2), he shall issue awarrant in accordance with this Act.

(2) Where a warrant is issued under this section,the applicant shall, within ninety-six hours of the timeof its issue, submit to the Judge the documents specifiedin section 8(3).

(3) Where an applicant has submitted a writtenapplication and declaration in accordance with sub


Application forwarrant in urgentcircumstances

section (2), the Judge shall review his decision to issuethe warrant and shall—

(a) make an order revoking the warrant if he isnot satisfied that the warrantcontinues to be necessary as mentioned insection 8(2); or

(b) make an order affirming the warrant, ifsatisfied that the warrant continues to benecessary as mentioned in section 8(2).

(4) Where a warrant issued under this section isrevoked under subsection (3)(a), it shall cease to haveeffect upon such revocation.

(5) Where a warrant is affirmed under subsection (3)(b),section 10 shall apply with respect to its duration.

(6) Where an applicant has not submitted awritten application and declaration in accordance withsubsection (2), the warrant issued under this sectionceases to have effect upon the expiration of ninety-sixhours.

12. A Judge may modify a warrant at any time, afterhearing representations from an authorized officer andif satisfied that there is any change in the circumstanceswhich constituted grounds for the issue or renewal ofthe warrant.

13. (1) Every person or entity who provides atelecommunications service by means of a public orprivate telecommunications network and all otherproviders of telecommunications services shall take allsteps that are necessary to ensure that promptassistance can be provided where necessary to complywith interception warrants granted under this Act.

(2) A person or entity directed to provideassistance by way of information, facilities or technicalassistance under section 9(4) shall, without delay,


Duties of personsproviding assistanceor telecommunica-tions services

Modification ofwarrants

comply with that direction and in such a manner thatthe assistance is rendered—

(a) as unobtrusively; and(b) with the minimum interference to the

services that such person or entity normallyprovides to the party affected by thewarrant,

as can reasonably be expected in the circumstances.

(3) Where a person or entity acts in contraventionof subsection (1) or (2), then without prejudice to anyother action with respect to the contravention which islawfully available, that person or entity commits anoffence and is liable on summary conviction to a fine ofone million dollars.

14. Where a Judge issues a warrant, he shall issuesuch directions as he considers appropriate for thepurpose of requiring the authorized officer to make sucharrangements as are necessary—

(a) for ensuring that—(i) the extent to which the intercepted

communication is disclosed;(ii) the number of persons to whom

any of that communication isdisclosed;

(iii) the extent to which any suchcommunication is copied; and

(iv) the number of copies made of anyof the communication,

is limited to the minimum that is necessaryfor the purpose of the investigation inrelation to which the warrant was issued orof any prosecution for an offence; and

(b) for ensuring that each copy made of any ofthat communication is stored in a securemanner for so long as its retention isnecessary for any purpose mentioned inparagraph (a).


Confidentiality ofinterceptedcommunication

15. (1) Where a protected communication has comeinto the possession of an authorized officer by virtue ofa warrant, or is likely to do so, and the officer hasreasonable grounds to believe that—

(a) a key to the communication is in the possessionof any person; and

(b) disclosure of the key is necessary for thepurpose of the investigation in relation towhich the warrant was issued,

the officer may apply to a Judge for an order requiringthe person whom he believes to have possession of thekey to provide disclosure in respect of the protectedcommunication.

(2) An order under this section shall—(a) be in writing;(b) describe the communication to which the

order relates;(c) specify the time by which the order is to be

complied with; and(d) set out the disclosure that is required by the

order, and the form and manner in whichthe disclosure is to be made,

and any such order may require the person to whom itis addressed to keep secret the contents and existence ofthe order.

(3) An order under this section shall not requirethe disclosure of any key which—

(a) is intended to be used for the purpose only ofgenerating electronic signatures; and

(b) has not in fact been used for any otherpurpose.

(4) In granting the order required for the purposeof subsections (1) and (2), the Judge shall take intoaccount—

(a) the extent and nature of any protectedcommunication, the key to which is the sameas that to the intercepted communication; and


Order requiringdisclosure ofprotectedcommunication

(b) any adverse effect that complying with theorder might have on a business carried onby the person to whom the order isaddressed,

and shall require only such disclosure as is proportionateto what is sought to be achieved, allowing, whereappropriate, for disclosure in such manner as wouldresult in the putting of the communication in intelligibleform other than by disclosure of the key itself.

(5) An order under this section shall not requirethe making of any disclosure to a person other than—

(a) the authorized officer; or(b) such other person as may be specified in the

order.

16. (1) Subject to subsection (2), a person to whom adisclosure order is addressed—

(a) is entitled to use any key in his possessionto obtain access to the protectedcommunication; and

(b) in accordance with the order, shall disclosethe protected communication in an intelligibleform.

(2) Where a disclosure order requires the person towhom it is addressed to disclose a protectedcommunication in an intelligible form, that person shallbe taken to have complied with that requirement if—

(a) he makes, instead, a disclosure of any key tothe protected communication that is in hispossession; and

(b) the disclosure is made in accordance withthe order, with respect to the person towhom, and the time in which, he wasrequired to disclose the communication.


Effect of disclosureorder

(3) Where an order requiring access to a protectedcommunication or the putting of the protectedcommunication into intelligible form is addressed to aperson who is—

(a) not in possession of the protectedcommunication to which the order relates;or

(b) incapable, without the use of a key that isnot in his possession, of obtaining access tothe protected communication or disclosing itin an intelligible form,

he shall be taken to have complied with the order if hediscloses any key to the protected communication that isin his possession.

(4) It shall be sufficient for the purpose ofcomplying with an order for the person to whom it isaddressed to disclose only those keys the disclosure ofwhich is sufficient to enable the person to whom they aredisclosed to obtain access to the protected communicationand to put it in an intelligible form.

(5) Where—(a) the disclosure required by an order allows

the person to whom it is addressed tocomply with the order without disclosing allof the keys in his possession; and

(b) there are different keys, or combination ofkeys, in the possession of that person thedisclosure of which would constitutecompliance with the order,

the person may select which of the keys, or combinationof keys, to disclose for the purpose of complying with theorder.

(6) Where a disclosure order is addressed to aperson who—

(a) was in possession of the key but is no longer in possession of it;


(b) if he had continued to have the key in hispossession, would be required by virtue ofthe order to disclose it; and

(c) is in possession of information that wouldfacilitate the obtaining or discovery of thekey or the putting of the communicationinto an intelligible form,

that person shall disclose to the person to whom hewould have been required to disclose the key, all suchinformation as is mentioned in paragraph (c).

(7) A person who, without reasonable excuse, failsto comply with a disclosure order commits an offenceand is liable on summary conviction to a fine of onehundred thousand dollars and to imprisonment for oneyear.

(8) An authorized officer who obtains a disclosureorder shall ensure that such arrangements are made asare necessary for securing that—

(a) a key disclosed in pursuance of the order isused to obtain access to or put into intelligibleform only the protected communications inrelation to which the order was given;

(b) every key disclosed in pursuance to theorder is stored in a secure manner, and anyrecords of such key are destroyed as soon asno longer needed to access the communica-tion or put it into an intelligible form; and

(c) the number of—(i) persons to whom the key is

disclosed or otherwise madeavailable; and

(ii) copies made of the key,is limited to the minimum that is necessary for thepurpose of enabling the protected communication to beaccessed or put into an intelligible form.


(9) An authorized officer who knowinglycontravenes subsection (8) commits an offence and isliable on summary conviction to a fine of two hundredthousand dollars and to imprisonment for two years.

17. (1) In this section, “sensitive information” meansany information that suggests or tends to suggest—

(a) any of the details pertaining to the methodby which the communication was intercepted;or

(b) the identity of any party carrying out orassisting in the interception.

(2) Subject to subsections (3) and (4), the contentsof a communication that is obtained by interceptionpermitted by warrant issued pursuant to section 8 or 11shall be admissible as evidence in any criminalproceedings.

(3) Where a warrant issued in accordance with thisAct is revoked in accordance with section 11, thecontents of any communication intercepted under thatdirection shall be inadmissible as evidence in anycriminal proceedings which may be contemplate.

(4) In any criminal proceedings—(a) no evidence shall be adduced and no

question shall be asked of any witness thatsuggests or tends to suggest the disclosureof sensitive information;

(b) a statement by the witness that theinterception of the communication waspermitted by virtue of section 6(2)(a), (b), (c),(d), (e) or (f), as the case may be, shall besufficient disclosure as to the source andorigin of the communication; and

(c) in proving the truth of a statement referredto in paragraph (b), the witness shall not beasked to disclose sensitive information.


Admissibility ofevidence

(5) Subsection (4) shall not apply to any criminalproceedings in respect of an offence under this Act, butif the Court is satisfied that—

(a) the disclosure of sensitive informationwould jeopardize the course of anyinvestigation being carried out by authorizedofficers; and

(b) the parties to the proceedings would beunduly prejudiced thereby,

the Court may exclude such disclosure.18. (1) In this section—

“communications data” means any—(a) traffic data comprised in or

attached to a communication,whether by the sender or otherwise,for the purpose of any telecommu-nications network by means ofwhich the communication is being ormay be transmitted;

(b) information, that does not includethe contents of a communication,other than any data falling withinparagraph (a), which is about theuse made by any person—

(i) of any telecommunicationsnetwork; or

(ii) of any part of a telecom-munications network inconnection with theprovision to or use by,any person of anyt e l e c o m m u n i c a t i o n sservice;

“traffic data”, in relation to a communication,means any data—

(a) identifying, or purporting toidentify, any person, apparatus or


Disclosure ofcommunicationsdata

location to or from which thecommunication is or may betransmitted;

(b) identifying or selecting, orpurporting to identify or select,apparatus through or by means ofwhich the communication is ormay be transmitted;

(c) comprising signals for the actuationof—

(i) apparatus used for thepurpose of at e l e c o m m u n i c a t i o n snetwork for effecting, inwhole or in part, thetransmission of anycommunication; or

(ii) any telecommunicationsnetwork in which thatapparatus is comprised;

(d) identifying the data or other dataas data comprised in or attached toa particular communication; or

(e) identifying a computer file orcomputer programme, access towhich is obtained or which is run bymeans of the communication, to theextent only that the file orprogramme is identified byreference to the apparatus inwhich it is stored, and referencesto traffic data being attached to acommunication include referencesto the data and the communicationbeing logically associated witheach other.

(2) Where it appears to the authorized officer thata person providing a telecommunications service is or


may be in possession of, or capable of obtaining, anycommunications data, the authorized officer may, bynotice in writing, require the provider—

(a) to disclose to an authorized officer all of thedata in his possession or subsequentlyobtained by him; or

(b) if the provider is not already in possession ofthe data, to obtain the data and so discloseit.

(3) An authorized officer shall not issue a noticeunder subsection (2) in relation to any communicationsdata unless he has obtained a warrant under section 8or 11.

(4) A notice under subsection (2) shall state—(a) the communications data in relation to

which it applies;(b) the authorized officer to whom the disclosure

is to be made;(c) the manner in which the disclosure is to be

made; (d) the matters by reference to which the notice

is issued; and(e) the date on which it is issued.

(5) Sections 13 and 14 shall apply, with thenecessary modifications, to the disclosure of datapursuant to a notice issued under this section.

(6) Subject to subsection (7), a provider of atelecommunications service, to whom a notice is issuedunder this section, shall not disclose to any person theexistence or operation of the notice, or any informationfrom which such existence or operation could reasonablybe inferred.


(7) The disclosure referred to in subsection (6) maybe made to—

(a) an officer or agent of the service provider,for the purpose of ensuring that the notice iscomplied with;

(b) an attorney-at-law for the purpose ofobtaining legal advice or representation inrelation to the notice,

and a person referred to in paragraph (a) or (b) shall notdisclose the existence or operation of the notice, exceptto the authorized officer specified in the notice or for thepurpose of—

(i) ensuring that the notice is complied with, orobtaining legal advice or representation inrelation to the notice, in the case of anofficer or agent of the service provider; or

(ii) giving legal advice or makingrepresentations in relation to the notice, inthe case of an attorney-at-law.

(8) An authorized officer shall not disclose anycommunications data obtained under this Act, except—

(a) as permitted by the notice;(b) in connection with the performance of his

duties; or (c) if the Minister directs such disclosure to a

foreign government or agency of suchgovernment where there exists between theState and such foreign government anagreement for the mutual exchange of thatkind of information and the Minister considersit in the public interest that such disclosurebe made.

(9) A person who contravenes subsections (6), (7) or(8) commits an offence and is liable on summary convictionto a fine of three hundred thousand dollars and toimprisonment for five years.


19. (1) Subject to subsection (2), communicationsdata obtained in accordance with section 18 shall beadmissible as evidence in accordance with the lawrelating to the admissibility of evidence.

(2) In admitting into evidence any communicationsdata referred to in subsection (1)—

(a) no question shall be asked of any witnessthat suggests or tends to suggest thedisclosure of any of the details pertaining tothe method by which the data was obtainedor the identity of any party who supplied thedata;

(b) a statement by the witness that the datawas obtained by virtue of an order undersection 15 shall be sufficient disclosure as tothe source or origin of the data; and

(c) in proving the truth of a statement referredto in paragraph (b), the witness shall not beasked to disclose any of the matters referredto in paragraph (a).

(3) Subsection (2) shall not apply to any proceedingsin respect of an offence under this Act, but if the Courtis satisfied that—

(a) the disclosure would jeopardize the course ofany investigations being carried out by anauthorized officer; and

(b) the parties to the proceedings would beunduly prejudiced thereby,

the Court may exclude disclosure of the mattersreferred to in subsection (2)(a).

20. (1) An authorized officer shall ensure that anyrecord of information obtained from the interception ofcommunications in pursuance of section 8 or 11 that isnot related to the objective of the interception isdestroyed immediately.


Admissibility ofcommunications data

Destruction ofrecords

(2) An authorized officer shall ensure that anyrecord of information obtained from the interception ofcommunications in pursuance of section 8 or 11, beinginformation that relates wholly or partly and directly orindirectly to the objective of the interception isdestroyed as soon as it appears that no proceedings, orno further proceedings, will be taken in which theinformation would be likely to be required to beproduced in evidence.

(3) Nothing in subsection (2) shall apply to anyrecord of any information adduced in proceedings in anycourt.

(4) Where a warrant issued in accordance withsection 11 is revoked or ceases to have effect, any recordof information obtained from the interception ofcommunications in pursuance of the warrant shall bedestroyed immediately.

(5) An authorized officer who intercepts acommunication in pursuance of section 6(2)(b) shallensure that any record of information obtained from theinterception that is not related to the objective of theinterception is destroyed immediately.

(6) The Commissioner of Police shall consult withthe Chief of Defence Staff, the Director of the StrategicServices Agency and, where he considers it appropriate,the Director of Public Prosecutions, prior to the destruction.

(7) A person required to destroy any record ofinformation in accordance with this section who fails todo so commits an offence and is liable to a fine of fivehundred thousand dollars and to imprisonment forseven years.

PART III

GENERAL PROVISIONS

21. An authorized officer shall not be liable for any actdone by him in good faith pursuant to this Act.


Protection of authorized officer

22. The Minister shall be informed—(a) of an interception under section 6(2)(b)

within ninety-six hours of thecommencement of the interception;

(b) of an application under section 8 by theauthorized officer who has made theapplication as soon as is practicable afterthe making of the application;

(c) of an application under section 11 by theauthorized officer who has made theapplication within forty-eight hours of themaking of the application,

in the form set out in Schedule 3.

23. (1) A person who, in an application or declarationunder this Act, makes a statement which he knows to befalse in any material particular commits an offence andis liable on summary conviction to a fine of two hundredand fifty thousand dollars and to imprisonment forthree years.

(2) A person who intentionally discloses thecontents of any communication—

(a) obtained by means of a warrant, to a personto whom he is not authorized to disclose thecommunication;

(b) obtained in the course of the interception ofcommunication to a person to whom he is notauthorized to disclose the communicationwhether the interception occured prior to orafter the commencement of this Act; or

(c) obtained in contravention of this Act,

commits an offence and is liable on summary convictionto a fine of two hundred and fifty thousand dollars andto imprisonment for three years.

(3) Subsection (2) shall not apply to the disclosureof the contents of any communication obtained by


Minister to beinformed

Offences

means of a warrant which is made, in any criminalproceedings, to a person charged with an offence or tothe attorney-at-law representing that person in thoseproceedings.

(4) A person who intentionally has in his possessioncommunications intercepted under this Act and who isnot authorized to have such communications commitsan offence and is liable on summary conviction to a fineof one hundred thousand dollars and to imprisonmentfor two years.

(5) A person who intentionally has in hispossession communications intercepted under this Actand who is not authorized to have such communicationsand who discloses such communications commits anoffence and is liable on summary conviction to a fine oftwo hundred and fifty thousand dollars and toimprisonment for three years.

(6) No action shall be brought in any Courtagainst a person or entity for any act done in good faithin pursuance of a warrant under section 8 or 11 or adirection under section 6(2)(b) to provide information,facilities or technical assistance.

24. (1) The Minister shall, within three months, afterthe end of each year, in relation to the operation of theAct in the immediately preceding year, prepare a reportrelating to–

(a) the number of warrants applied for tointercept communications;

(b) the number of warrants granted by theCourt;

(c) the number of warrants applied for andgranted under section 11;

(d) the average period for which warrants weregiven;

(e) the number of warrants refused or revokedby the Court;


Annual Report

(f) the number of applications made forrenewals;

(g) the number and nature of interceptionsmade pursuant to the warrants granted;

(h) the offences in respect of which warrantswere granted, specifying the number ofwarrants given in respect of each of thoseoffences;

(i) the numbers of persons arrested whoseidentity became known to an authorizedofficer as a result of an interception under awarrant;

(j) the number of criminal proceedingscommenced by the State in which privatecommunications obtained by interceptionunder a warrant were adduced in evidenceand the number of those proceedings thatresulted in a conviction;

(k) the number of criminal investigations inwhich information obtained as a result of theinterception of a private communicationunder a warrant was used although theprivate communication was not adduced inevidence in criminal proceedingscommenced by the State as a result of theinvestigations;

(l) the number of prosecutions commencedagainst persons under sections 6, 7, 8, 17, 19and 21 and the outcome of thoseprosecutions;

(m) a general assessment of the importance ofinterception of private communications forthe investigation, detection, prevention andprosecution of offences in the State; and

(n) any other matter he considers necessary.


(2) The Minister shall cause a copy of the reportprepared by him under subsection (1) to be laid beforeboth Houses of Parliament within one month after itscompletion.

25. (1) The Minister may make regulations to giveeffect to the purpose of this Act.

(2) Regulations made under subsection (1) shallbe subject to negative resolution of Parliament.

26. The Minister may by Order amend any of theSchedules to this Act.

“SCHEDULE 1[Section 8(3)]

APPLICATION FOR A WARRANT

I, (Name of Authorized Officer), Chief of Defence Staff/Commissioner of Police/Director of Strategic Services Agency*hereby apply to a Judge of the High Court under the Interceptionof Communications Act, 2010 (hereinafter referred to as “the Act”)for a Warrant under section 8 of the Act.

I pray that the Warrant be issued to authorize (Name of Person toconduct Interception) to intercept, in the course of its transmission bymeans of a public or private telecommunications network, thefollowing communications:

(Description of Communication)And I further pray that the said (Name of Person) be authorized

to disclose the intercepted communication to [Names of Person(s)]in the following manner:

(Description of Manner)This application is supported by a statutory declaration from the

Authorized Officer pursuant to section 8(3)(a) of the Act. A draft of the order that the Authorized Officer seeks is also

attached.

Dated this.....................day of ................................., 20..........

Signed: ........................................... Authorized Officer

*delete as applicable.


Regulation

Schedules amended

SCHEDULE 2[Section 8(3)]

STATUTORY DECLARATION IN SUPPORT OF AN APPLICATIONFOR A WARRANT

I, (Name of Authorized Officer), Chief of Defence Staff/Commissioner of Police/Director of Strategic Services Agency*acting herein as an Authorized Officer under the Interception ofCommunications Act, 2010 (hereinafter referred to as “the Act”)make oath and say as follows:

1. I am an Authorized Officer under the Act, namely ....................(state portfolio). Except where I state otherwise, the facts set outherein are based on my personal knowledge.

2. By virtue of section 8 of the Act, I am authorized to make thisstatutory declaration in support of an application for a Warrantunder section 8 of the Act, in respect of communications by anindividual known as .................................................. and in respectof the following method(s) of communication:

[Specify, in detail, the method of communication (e.g., computer,telephone, etc.)]

(i) ......................................................

(ii) .....................................................

3. A Warrant is required because (state facts or allegation givingrise to the application.)

4. This Court is requested to issue a Warrant on the grounds of..................... [Note: specify ground(s) under section 8 of the Act onwhich Court is requested to grant the Warrant].

5. Further, I believe that a Warrant should be issued by thisCourt because: [the following information should be stated—

(i) if practical, a description of the nature and location of thefacilities from which or premises at which the communica-tion is to be intercepted; and

(ii) the basis for believing that evidence relating to the groundon which the application is made will be obtained throughthe interception.]


6. I am informed and verily believe that—(i) the following investigative procedures were engaged and

failed to adequately obtain the evidence required: [specifyinvestigative procedures, if any and reason why they failed.]or

(ii) other investigative procedures appear to be unlikely tosucceed or appear to be too dangerous for the followingreasons: [specify reasons.]*

7. If a Warrant is issued by this Court, it will be required for aperiod of ...................months. [specify number of months Warrant isto subsist.

Note: the duration of a Warrant is not to exceed ninety days. Afurther application will have to be made to the Court for anextension, if necessary.]

8. (1) There has not been any previous application for a Warrantmade with respect to this person; or

(2) There has been a previous application for a Warrant madewith respect to this person [specify status of previous application] *

9. In the circumstances the applicant requests that a Warrant begranted for a period of .......................months/weeks/days.

I MAKE this declaration conscientiously believing the same to betrue and according to the Statutory Declarations Act, Chap. 7:04,and I am aware that if there is any statement in this declarationwhich is false in fact, which I know or believe to be false or do notbelieve to be true, I am liable to fine and imprisonment.

Dated this day of , 20

…………………………………….Authorized Officer

*delete as applicable.


SCHEDULE 3

(Section 23)FORM TO NOTIFY MINISTER

To: Minister of National Security

I, ...............................................................................................(Name and position)

of ...............................................................................................(department, division, section or branch)

hereby inform you that I have on ............................................Date

(a) commenced an interception of ............................................

...................................................................................................[state facts, where interception is under section 6(2)(b)];

(b) made an application for a warrant in the matter of

...................................................................................................(state facts, where interception is under section 8);

(c) made an oral application for a warrant in the matter of

...................................................................................................(state facts, where interception is under section 11).

Dated this ................ day of ........................................., 2010

.......................................................Signature


Passed in the House of Representatives this 26th dayof November, 2010.

Clerk of the House

IT IS HEREBY CERTIFIED that this Act is one the Bill forwhich has been passed by the House of Representativesand at the final vote thereon in the House has beensupported by the votes of not less than three-fifths ofall the members of the House, that is to say, by the votesof 35 members of the House.

Clerk of the House

Passed in the Senate this 1st day of December, 2010.

Clerk of the Senate

IT IS HEREBY CERTIFIED that this Act is one the Bill forwhich has been passed by the Senate and at the finalvote thereon in the Senate has been supported bythe votes of not less than three-fifths of all the membersof the Senate, that is to say, by the votesof 27 members of the Senate.

Clerk of the Senate

Senate amendments were agreed to by the House ofRespresentatives on December 01, 2010.

Clerk of the House


PRINTED BY THE GOVERNMENT PRINTER, PORT-OF-SPAINREPUBLIC OF TRINIDAD AND TOBAGO—2010

The Interception of Communications Act, 2010 · 2010. 12. 15. · AN ACT to provide for and about the interception of communications, the acquisition and disclosure of data relating

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