Revelations by telecoms giant Vodafone that its networks are completely accessible to intelligence agencies have ignited a debate about the lack of scrutiny covering this practice in Malta.

The British multinational yesterday issued its first Law Enforcement Disclosure Report in which it revealed government agencies are able to listen in on live conversations on its entire network through secret pipelines.

The company took the plunge as part of its response to growing concerns by consumers about the extent of governments’ eavesdropping capabilities.

In fact, the launch has been made to coincide with the first anniversary of the watershed disclosures of whistleblower Edward Snowden, who revealed widespread surveillance of the internet by US intelligence agencies.

The report does not delve into the Maltese infrastructure because local legislation bars the disclosure of the spying capability of the government’s intelligence agency, the Malta Security Service (MSS). However, in 2005, Times of Malta had reported on plans to install a national eavesdropping system that would cover all channels of communications.

All of Malta’s telecoms firms were required to install, at their own expense, interception devices that enable the monitoring of all channels: land line, mobile telephony, e-mail or internet.

In its report, Vodafone deals with two types of interception: what is known as metadata, normally accessed by the police after a formal demand to the companies, and tapping, which is only accessible to the MSS.

According to information presented in the report, Vodafone Malta received 3,773 metadata requests from the police between April 1, 2013 and March 31, 2014. It is one of the highest rates among the countries listed but a far cry from Italy’s 600,000 plus requests.

The bulk of these cases are normally related to localising mobile phones thefts or when the device itself is lost. Less frequently, the police used such information in criminal investigations like murder, to establish whether a suspect was at the scene of the crime when the death occurred.

However, the Vodafone report also implies that the MSS can bypass telecoms companies (not just Vodafone Malta but also Go, Melita and others) and eavesdrop without them even having any knowledge of it.

The Malta Security Services Act enables the agency to do this in pursuit of its investigations, which normally involve organised crime and terrorism threats.

However, yesterday’s revelations re-ignited a debate about the lack of day-to-day oversight inherent in the Maltese law, particularly the fact that interception warrants are issued by the home affairs minister.

Former European Court of Human Rights judge Giovanni Bonello pointed out that though the right to privacy was not absolute, it was still a fundamental human right.

For this reason, any invasion of privacy must be justified and proportional. This raises a number of questions, some of which concern who establishes whether there is reasonable suspicion to warrant wiretapping, for instance.

“Who will authorise the interception? Is it enough that this be left in the hands of a minister or some other political figure or should this authority be delegated exclusively to an independent and impartial judge or magistrate,” he asked. “These questions raise troubling issues which, in my view, may not give the maximum level of protection to the invaluable right to privacy under the current Maltese system.”

Lawyer Michael Zammit Maempel, who specialises in IT and data protection law, echoed Dr Bonello’s concerns.

Presently, the only significant oversight comes from the Security Committee (made up of the Prime Minister, the Opposition leader, the Home Affairs Minister and the head of the MSS).

“To my knowledge, the committee does not go into individual cases but looks at aggregate data. This means there is no verification that due care was taken with individual cases,” he said.

These questions raise troubling issues

Dr Zammit Maempel conceded that changes in this area could be tricky given the particular sensitivity and needs of the security service, which played a vital role in the national interest.

But he pointed to the need to modify the law in a way that warrants would not be in the hands of the home affairs minister.

“This point is particularly relevant for us where the small size of the country makes this issue all the more sensitive,” he said.

Leading criminal lawyer Joe Giglio also argued there were not sufficient safeguards in the law governing the security service.

He pointed out that the agency was challenged in court a number of times but the legal battle never went into whether the tapping was justified.

Moreover, he underlined that, unlike the legal system in the US, the Maltese judicial system did not discriminate against evidence collected unlawfully. In other words, while, in other jurisdictions, evidence obtained from wiretapping was considered to be inadmissible, in Malta it was not.

“One can claim a breach of rights but the evidence would still be admitted even if, in this case, it would not be covered by a warrant,” Dr Giglio said.