A chance to get the law on wiretaps right

PUBLISHED : Saturday, 14 February, 2009, 12:00am
UPDATED : Saturday, 14 February, 2009, 12:00am

Once a year, the community gets a snapshot of the snooping on citizens by law enforcement agencies. The annual report of the watchdog on phone-tapping and bugging of private property reveals how much of it is going on and how many arrests of wrongdoers are said to have resulted from it. It also serves to monitor the balance between surveillance to combat crime and respect for the right to privacy under the law. In this respect the report for 2007, delivered only this week, raises concerns. The commissioner on interception of communications and surveillance detected 10 breaches of privacy safeguards. They included an unauthorised interception that lasted five days as a result of lax administration. In four other cases, officers continued tapping phones after judges had revoked authorisations for the tapping.

Especially worrying is the unauthorised tapping of lawyers' conversations with clients and the frustration of the commissioner's efforts to verify that respect for the principle of legal professional privilege had been observed. In one of four cases involving the Independent Commission Against Corruption, a judge revoked at 11.15am an authorisation for a phone tap that eavesdropped on a lawyer-client conversation. The ICAC says it discontinued the operation at 11.25am but unauthorised interception continued for another 95 minutes. When the commissioner, Mr Justice Woo Kwok-hing, looked into it he was unable to verify that information covered by privilege had not been wrongly used because records had been destroyed as a matter of policy.

To those people who fought to strengthen safeguards in the covert surveillance law, this confirms their worst fears. The law was passed two and a half years ago to meet a court-imposed deadline to put snooping on citizens on a sound legal footing. It was long overdue. But the government forced it through the Legislative Council without adopting even one of some 200 amendments suggested by critics to safeguard rights, including the last resort of a 'sunset' clause that would at least have eased concerns.

As a result, the legislation fails to strike the right balance. To avoid needlessly stoking concerns about privacy, it would have made sense to ensure that enforcement agencies scrupulously observe the letter and spirit of the law. The explanations put forward by the Security Bureau for their failure to do so, such as isolated non-compliance, inadvertent oversights, technical errors and lack of thorough understanding of the law, are unconvincing. And none of them explain a policy of destroying records that hindered the commissioner's inquiries.

The commissioner's report has raised widespread concerns among lawyers. The Security Bureau says improvements have been made in the light of the commissioner's recommendations. But officials can expect to field a lot of questions when the Legislative Council's security panel considers the report next week. Issues that were raised during the passage of the legislation will come up again, such as the commissioner's lack of power to punish those responsible for abuses. That said, it is good that these incidents have been highlighted. It shows that the monitoring is working, but also that the system is open to abuse. Our covert surveillance law remains far from ideal and should be revisited. The bureau has reaffirmed the government's promise of a comprehensive review of the ordinance after three years - due after the commissioner's next annual report. It may be the last chance to get it right for a long time.