Issa defends ‘rights to privacy’
Published:Saturday | July 15, 2023 | 12:09 AMTanesha Mundle/Staff Reporter
AMOI LEON Issa, the mother of nine-year-old Gabriel King who was viciously murdered last January, wants the Supreme Court to find that the State breached her rights to privacy when the parish court judge granted permission to the police to search her cellular phone.
The claimant also wants the High Court to determine whether the production order granted by the judge was necessary and demonstrably justified.
Issa, who is suing the State for continued violation of her privacy rights as well as her right to informational privacy, is also seeking to have the judge order’s quashed and several declarations deeming different aspects of the judge’s order unconstitutional.
She also wants vindicatory damages.
The claimant filed the lawsuit after St James Parish Court Judge Sasha Ashley granted a production order to Constable Julian Frazer last September for Issa to provide the phone’s passcode to facilitate access to data as part of the police investigation into her son’s murder. Frazer is named in the claim as the first defendant, the police commissioner is the second while the judge is listed as third and the attorney general is fourth.
Abducted, throat slashed
The child, who was developmentally challenged, was reportedly abducted from his mother’s car along the Tucker main road in St James, on January 13, after assailants reportedly dragged her from her motorcar and took the vehicle with the child still in the back seat.
King’s body was subsequently found on the back seat of the vehicle in Fairfield, St James, with his throat slashed.
Issa’s phone, which she had given to her son to use before the incident, was also found beside the boy’s body and was seized.
The production order was thereafter granted by the parish judge after an ex parte application, which is an application heard in the absence of one of the parties.
The order was for Issa to produce the passcode to the phone and in intelligible form any communication data, cell cite data and other data contained on the phone for the purpose of the criminal investigation.
Yesterday during the hearing in the Full Court before justices Lorna Shelly-Williams, Simone Wolfe-Reece and Andrea Pettigrew-Collins, attorney Chukwuemeka Cameron argued that the production order restricted his client’s right to privacy and right to information privacy as it granted the police permission to access her personal information.
“It’s the claimant’s case that in applying for a production order and in granting a production order in circumstances where in complying with the order would give an untold number of persons, for an indefinite period of time, access to all the personal data and information contained on the mobile phone of the claimant is without doubt a restriction of her right to privacy,” he added.
Pointing to section 21, of the Cybercrimes Act, which sanctions the production order, Cameron argued that under the law, the data which is requested must be specified as well as a time period.
Cameron also argued that the State could have pursued a less restrictive measure to access the data which is being sought.
Instead of using the Cybercrimes Act, Cameron said the police could have used the Interception of Communications Act to compel the relevant telecommunications company to produce the data that they are seeking.
order Impossible to fulfil
He also advanced that the judge’s order for the production of cell site data which the police later conceded could not be ascertained from the phone further evidenced the breach, as the judge had made an order which was impossible for his client to fulfil.
Cameron, while underscoring that every citizen has a right to privacy, indicated at the same time, “We must also accept that no state organ can restrict that right unless it is demonstrably justified.”
In this regard, he averred that the court now needs to determine whether it was necessary and demonstrably justified for the parish judge to have restricted his client’s right to privacy.
“It is not sufficient for the judge to say she satisfies herself,” he added.
According to him, he was not made aware of the application that was presented to the judge and on what basis she had granted the order and his request for the supporting documents for the application was denied.
Cameron also submitted that the absence of the ex parte application was fatal to the defendant’s position.
In the meantime, Cameron said her client was always concerned about her privacy and through her former lawyer had written a letter to the police last September expressing her concerns while indicating that she was prepared to give the police access provided that her privacy rights were not breached.
“Without question in today’s age, there are few things that could be considered more private than one cell’s phone. Mrs Issa is guaranteed the right to keep her personal life private, especially when it comes to her personal phone … . For a member of the public like the claimant, who is not involved in any criminal activity, it is reasonable to believe that their phone, which contains such intimate details of their life, would be safe from arbitrary search,” Cameron submitted.
Cameron will complete his submission when the matter resumes next Friday.
Both parties in the meantime were ordered by the judges to make submissions on public interest immunity.
Meanwhile, as it relates to the production order, Issa has been ordered by the court to comply with the order by month end, after the Supreme Court ruled against her in a judicial review that was sought for the order, which was varied to provide certain safeguards and protects information concerning third parties not associated with the investigations.