The Home Affairs Ministry is analysing the law regulating the Malta Security Service, with a view of strengthening oversight on its day-to-day wire-tapping capability.
The move comes after telecoms giant Vodafone on Friday released a tell-all report in which it revealed that its networks are completely accessible to intelligence agencies in the countries where it operates.
In its first Law Enforcement Disclosure Report, launched on the first anniversary of the watershed disclosures of whistleblower Edward Snowden – who revealed widespread surveillance of the internet by US intelligence agencies – Vodafone underscored that intelligence agencies have direct access to its networks.
The document re-ignited the debate about the oversight of the security service in Malta, with legal experts arguing the legislation in place opens some concerns, particularly with regards to the day-to-day oversight of the agency.
Asked to comment about these concerns, a spokeswoman for the Home Affairs Minister Manuel Mallia said the ministry would be “analysing the Malta Security Services Act to see if the oversight mechanisms could be strengthened”. She insisted, however, that some media reports on the Vodafone document were misleading as they suggested widespread wiretapping of the Maltese population.
The report deals with two types of interception: what is known as metadata (information about the phone’s location) and direct wiretapping. Between April 1, 2013 and March 31, 2014, Vodafone Malta received 3,773 metadata requests.
However, these are generally lodged by the police and the majority of them actually relate to investigations on lost or stolen phones, which means the process would be inherently be driven by the owner of the phone.
In a minority of cases, the information is required for more serious criminal investigations, to establish whether a suspect was at the scene of the crime for instance.
The issue is not with this form of interception but with the potential for wiretapping.
The question of oversight has become fundamental to this discussion, particularly following the Snowden affair, Nationalist Party spokesman Jason Azzopardi pointed out. He argued that while the law enables the Security Service to intercept communications, it also stipulates that a warrant is needed for every single case.
“Since the Security Service actually controls the system, it is technically capable to intercept communications without obtaining the warrant and nobody would know,” he said.
A source who was associated with the Security Service in the past, who spoke anonymously, insisted that the agency is extremely judicious in the use of wiretapping. “This idea that the people at the security service are tapping people at will is a myth that people seem to like to believe it. It’s just not like that,” he said. He pointed out that the agency is subject to regular scrutiny from its overseeing commissioner, who is currently retired judge Frank Camilleri.
The law gives the commissioner the power to ask for any information from the head of the security service or any of his staff and make recommendations to the Prime Minister should he find any irregularities.
However, the law conceives of the commissioner as the person to handle complaints about the service.
When this was pointed to the source, he conceded that a person who does not know he is being tapped unlawfully would not be able to lodge any complaints. However, he insisted that even though the law does not stipulate specifically, the commissioner is empowered to carry out investigations at random.
The debate sparked by the report has been raging for months in many other countries, with more developed intelligence agencies. The central problem is echoed across different countries and centres mostly on the fact the technological capabilities for eavesdropping have outgrown the legal safeguards covering the agencies.
In Malta’s case, the Malta Security Services Act was introduced in 1996. Back then, the Security Service mostly wire-tapped landlines in its investigations. However, in 2006 Times of Malta had revealed all of Malta’s telecoms companies were forced to introduce infrastructure (at their expense) that would give the Security Service direct access to all of the country’s communication channels, landline, mobile, internet and e-mail.