As it stands, wiretapping is conducted by the Malta Security Services and regulated by the Security Services Act, which was last amended years ago. The law allows for broad discretion of the prime minister and the home affairs minister with regards to the use of their techniques.
The security services are supervised by a commissioner, who is appointed by and reports to the prime minister, and a security committee composed of the prime minister, the opposition leader and two other government members.
Warrants for special investigative techniques are issued by the minister, who can also modify them at any time. It is not crystal clear whether information gathered through these techniques can be used as evidence or only for intelligence purposes.
At one time, the Home Affairs Ministry was analysing the law regulating the Malta Security Service, with a view to strengthen oversight on its day-to-day wire-tapping capability.
The perception has always been that there is widespread wiretapping of the Maltese population consisting of two types of interception: what is known as metadata (information about the phone’s location) and direct wiretapping.
During criminal proceedings in a local high-profile case in 2021, the Criminal Appeals Court had concluded that a portion of the evidence given by a lead investigator that referred to information coming from wiretaps of the accused’s phone was inadmissible. The reason why the information from the wiretaps had been deemed inadmissible was that the police were unable to provide evidence that the taps were covered by a warrant according to law. This result was shocking, to say the least, and it is about time to put the whole worrisome scenario into its proper legal perspective.
In the age of increased surveillance and technology, prosecutors use wiretapping to gather evidence to use in court in many serious criminal offences.
At the same time, wiretapping legislation should require investigators to jump through a series of procedural hoops, and if they fail to comply with such strict wiretap-warrant requirements, it should lead to the dismissal of the case.
Wiretapping has been a matter of public concern for many years. Since it invades the privacy of the individual, it presents a problem that touches each of us. Many persons believe that even if wiretapping is properly controlled and authorised, it is an intolerable instrument of tyranny, impinges on the liberties of the people, and should not be sanctioned anywhere in a free country.
To many other persons, surveillance of the wires by law enforcement officers under strict official supervision in cases involving national security and defence as well as other heinous crimes, such as kidnapping, is an essential and reasonable adjustment between the rights of the individual and the needs and interests of society.
Wiretapping should require supervision by the courts- Mark Said
I humbly suggest that the law be redone in a manner that lays down a number of specific wiretap-warrant requirements. Prior to obtaining and after obtaining a wiretap, investigators should follow very strict procedures. In order to intercept a person’s phone calls, text messages or e-mails, they should first resort to the attorney general in order to determine the legal basis for requesting authorisation to wiretap.
At this point, the attorney general should be provided with certain vital information, such as a statement of facts, other investigative techniques that have been tried and failed, the period of time for the requested interception (with a statutory maximum period to be legislated upon), and the reasons why interceptions are necessary because all other forms of information gathering have failed to provide law enforcement with the information they need.
In other words, investigators should first exhaust all other possible and lawful means of gathering intelligence, for example, physical surveillance, cell phone surveillance (pen registry and trap and trace), confidential informants, utilisation of tracking devices, interception of mail, photographing cars to associated registration information, and photographing suspects.
While the norm should be that privileged communications should never be subject to wiretapping, privileged calls can exceptionally be listened to if they are in furtherance of the investigation, for example, if the attorney is assisting in the criminal activity rather than giving legal advice.
If and when the attorney general finds that reasonable suspicion of criminal activity and a legal basis exists, that office should then seek and obtain the court’s authorisation for the interception in as much the same manner as when applying to the criminal court for an investigation order under the drugs and money-laundering legislation. Within 10 days after the termination of the authorised interception, the recordings should be made available to the judge who issued the order and shall be sealed under the judge’s directions. The sealing of evidence would ensure that investigators cannot go back and tamper with previously obtained evidence.
Furthermore, once the investigating body has obtained the information sought in the application, the wire must be terminated. If instead, during the interception period, evidence is obtained that leads to further investigation, investigators should be afforded the possibility to apply for an extension.
Wiretapping is somewhat like a search into the privacy of an individual’s affairs, and as in the case of a search, should require supervision by the courts. It is precisely at such a time as this when popular opinion and passion run so high that we must be most careful that reason and justice prevail, and that the law alone shall provide the test by which evidence is obtained and men are tried.
Only in this way may we avoid totalitarian techniques and tactics in preserving our democratic ideals and freedom.