The month of July must have been one of those rare occasions where the entire world, it seems, held a harmonious gasp as reports of “cell phone hacking” and other unethically abusive acts by employees of the popular News of the World were announced. Not only were actors, politicians and other iconic figures affected, but also targeted were ordinary individuals whose tragic experiences were systematically exploited by journalists of the daily newspaper. The mode of operation carried out by “cell phone hackers” carefully accessed voicemail and text messages on cell phones which held a bounty of information used to gain first page stories and ultimately higher revenues by the media corporation.

Everyone knows of the ability of investigators to listen in on telephone conversations via wiretapping which is easily done by inserting listening devices into the telephone receiver or by installing similar technology into the landline’s mainframe. Needless to say these recent developments have demonstrated the notion that nothing should be deemed ‘private’. Any device used in the communication process, whether via email, text, or the old fashioned method of a sealed envelope can be accessed by the smooth and innovative ‘spy’.

The Bahamas, like most of its international neighbors, is not immune to this recent phenomenon. In fact, the average conspiracy theorist would probably indicate that communication piracy is an everyday occurrence, pointing alone to the wire tapping practices which local journalist have reported its use in criminal investigations on more than one occasion. Even local politicians are not immune to the use of surveillance tactics carried out by ‘political mercenaries’ whose main objective is to capitalize on information that can be used to uncover political strategies and to execute influential smear campaigns. Despite its longstanding existence, there lies a consistent failure of local legislation to properly address this complex endemic whose growth coincides with the developing pace of modern communications. Ultimately, there is no guarantee of confidentiality when it comes down to technology.

A Brief on the Inquiry Agents and Security Guards Act

In the Bahamas those engaged in the world of background checks, surveillance, and other forms of private investigation and security services are governed primarily by the Inquiry Agents and Security Guards Act. While the Act provides a general definition of a security guard (i.e. a person who, for hire or reward, guards or patrols for the purposes of protecting persons or property), Inquiry Agents are defined by the Act as “a person who for hire or reward searches for and furnishes information as to the personal character and actions of a person, or the character or kind of business or occupation of a person”. Furthermore The Act does not apply to:

• Counsel and attorneys in the practice of their profession, or to their employees while acting in the usual and regular scope of their employment;
• Persons who search for and furnish information (i) to the financial credit rating of persons, (ii)to employers as to the qualifications and suitability of their employees or prospective employees, and (iii) as to the qualifications and suitability of applicants for insurance and indemnity bonds, and who do not otherwise act as inquiry agents;
• The Royal Bahamas Police Force or any person acting under the authority of any Act;
• Insurance adjusters and their employees while acting in the usual and regular scope of their employment;
• Insurance companies lawfully carrying on business in The Bahamas and their employees while acting in the usual and regular scope of their employment;
• Inquiry agents and security guards who are permanently employed by one employer on or in the vicinity of that employer’s premises in a business or undertaking other than the business of providing inquiry agents or security guards and whose work is confined to the affairs of that employer;
• Any class of persons excepted by the regulations.

In accordance with the Act, only Bahamians are allowed to work as an Inquiry Agent or Security Guard or engage in the business thereof and must hold a license which is achievable by satisfying the licensing authority that the licensee has met the minimum requirements (i.e. no previous criminal convictions, satisfactory character and competence, and financially able). Inquiry Agents and Security Guards are required by law to carry the license and produce it for inspection at the request of any police officer or other person having reasonable grounds to make the request. Security Guards are also required to wear a badge while on duty. The Act also prohibits the furnishing of false information by an Inquiry Agent or the provision of statements, impersonation of, or conducting any act calculated falsely to suggest that he is an inquiry agent or security guard with the intent to deceive.

From the onset the Inquiry Agents and Security Guards Act required immediate legislative updates in order to properly regulate the practical nature of investigative and/or research techniques conducted by Inquiry Agents. Although the Act prohibits the provision of false information by Inquiry Agents, the Act fails to address the very methods in which information is obtained, although other legislation may address the legal consequences of unethical activities carried out by Inquiry Agents. Section 35(7) of the Telecommunications Act for example, penalizes telecommunication licensees or their employees for the disclosure or use of “content of any message, information or documents that relate to the content of any message or the private affairs or personal particulars of any person that comes into the licensees knowledge or possession in connection with its business or providing telecommunications services”.

In similar fashion the Data Protection (Privacy of Personal Information) Act provides some form of protection in the disclosure of personal data by placing statutory obligations on “data controllers” (who are defined as a person who, either alone or with others, determines the purposes for which and the manner in which any personal data are, or are to be, processed) and penalizing individuals that obtain and/or discloses personal data (or any information constituting such data) without prior authority of a data controller. Further aggressive and unethical behavior by agents while in the course of conducting surveillance based activities may be subject to the legal confines of the Domestic Violence (Protection Orders) Act which, as of 2008, provides a clear definition of harassment which includes various forms of intimidation, stalking, deprivation of property owned or used by an individual, and the indulgence or engagement “in a pattern of behavior by a person that would or likely have the effect of undermining the emotional or well being of another”.

Although it is clear that the various legislation exists to addresses the parameters in which unethical and illegal activities may be conducted by an Inquiry Agent, yet it is obvious that their existence alone may prove ill-equipped to adequately prosecute the acts committed. The Telecommunications Act, while covering the act of “wire tapping” limits prosecution methods by applying its authority to licensees or employees of licensees, while ignoring individuals or entities that are not licensed under the Telecommunications Act. Furthermore the Act imposes a monetary penalty of $5,000.00 which, in its limited authority fails to impose a mandatory prison term. Similar limited exists in the Data Communications Act which imposes a monetary fine rather than a prison sentence. The penalties imposed for such purposes do not match the standards of most countries in which illegal acts committed by Inquiry Agents impose harsher penalties that may deter unethical conduct. Individuals or other entities participating in the Inquiry Agent business should be held at a higher standard of practice not only for the sake of protecting the reputation of their clients, but for the sake of upholding social morality.

Further legislative updates are also desperately needed for Security Guards in order to further protect the interest of the client and society at large. Although applicants are required to be qualified and competent for a license, there is a dire need to ensure that security guards are properly and regularly trained in order to ensure that their activities are conducted within the confines of the law. The establishment of a code of conduct emphasizing on the use of force to deter the criminal element for both Security Guards and Inquiry Agents would serve as a strong starting point for this growing industry. The use of force, as addressed in section 107 in the Penal Code, should be implemented into the proposed code of conduct and should also be amended to address the legal use of new technologies, such as electronic tasers, pepper sprays, and firing rubber bullets in order to protect the property of their client.

The numerous problems with legislative reforms in The Bahamas are just as perplex as the political machinery responsible for its implementation. Although the country has proven to improve its efficiency in updating legislation for its primary industries (i.e. Financial Services) for the sake of maintaining an international standard, updating many statutory instruments are left struggling to find its place within an ever changing society. As the News of the World incident remains fresh in memory, the country must properly engage itself in preventing similar tragedies.

Mario L. McCartney [esq.], B.A [Hons], LLB [Hons.] practices as Founder and Principal of the Chambers of LEX JUSTIS, a boutique law practice in Nassau, New Providence, The Bahamas. While presently engaged in general legal practice, Mr. McCartney’s specialty lies in debt recovery and offshore financial and corporate services, and is currently registered as a Compliance and Anti-Money Laundering Reporting Officer (CMLRO) for his Chambers. Mr. McCartney is also the present editor and main contributor of LEX JUSTIS blog site and welcomes all opinions and comments to his articles.

For further information on all legal services provided by Mr. McCartney please visit the LEX JUSTIS website @ www.lexjustis.com or email him at mmccartney@lexjustis.com, mario.l.mccartney@gmail.com.

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