The idea that all persons have a right to privacy and freedom from arbitrary government searches exists not only in the Fourth Amendment to the U.S. Constitution but in the constitutional documents of many nations. Unfortunately, many nations also share the U.S. government's belief that the peaceful sale and consumption of certain types of narcotics are crimes punishable by imprisonment. This inherent conflict between the drug war and the right to privacy is on display in a pair of recent cases where foreign appeals courts have been called upon to address the proposed extradition of accused drug traffickers to the United States. The common thread in both cases is the extent of domestic constitutional protections against wiretaps used to provide evidence to American prosecutors.
The first case comes from the United Kingdom although it deals with a group of defendants in the Bahamas. The Bahamas secured independence from the United Kingdom and adopted its own constitution in 1973, but like many former British colonies, the island nation chose to retain the Judicial Committee of the Privy Council as its final court of appeal. The Privy Council is composed primarily of the judges of the Supreme Court of the United Kingdom, who before 2005 were members of the House of Lords.
In 2004, federal prosecutors in Miami requested the Bahamas extradite Melvin Maycock Sr. and about a dozen other persons accused of drug trafficking. Bahamian police assisted the U.S. investigation by tapping and recording the defendants' telephone conversations. Before the Bahamian magistrate hearing the extradition requests, the defendants challenged the constitutionality of the wiretaps. The magistrate referred the constitutional questions to a higher court, and it, along with the Court of Appeal for the Bahamas, found nothing wrong with the wiretaps. Maycock and five of his co-defendants then made a final appeal to the Privy Council.
Unlike the United States, the Bahamas does not require a judicial order to authorize wiretaps. Under a 1972 law, adopted the year before the Bahamas present constitution took effect, the commissioner of police may conduct wiretaps "after consultation with the Attorney-General," a cabinet minister who sits in the Bahamian legislature. The Maycock defendants argued this did not provide sufficient constitutional safeguards, such as independent judicial oversight. In addition to freedom from unreasonable searches, the Bahamian constitution also recognizes the freedom "to receive and impart ideas and information without interference, and freedom from interference with his correspondence." The defendants said the police wiretaps violated this freedom.
The Privy Council agreed that wiretaps fell within the Constitution's "interference with correspondence" provision. Lord Jonathan Mance, who wrote the Privy Council's opinion, also expressed concerns that the lack of independent supervision and judicial safeguards might render the Bahamian wiretap law unconstitutional in the modern era. Lord Mance noted the comments of Justice John Isaacs, who initially heard this case in the Bahamas and "made clear his own grave concerns" about the absence of any oversight to identify or prevent police abuses. Nevertheless, both Justice Isaacs and Lord Mance felt obliged to reject the Maycock defendants' constitutional challenges to the wiretap law.
The reason given by Lord Mance was an unusual provision in the Bahamian constitution that "saved" certain laws adopted before 1973 from constitutional challenge. This savings provision included laws that might contradict the freedom to receive correspondence without state interference. According to Lord Mance, the wiretap law was constitutional under the pre-1973 Bahamian constitution, and even if it would be unconstitutional today, there is nothing the courts can do about it. It is up to the Bahamian legislature to amend or repeal the wiretap law.
The second drug wiretap case of interest comes from Canada. In 2007, the Royal Canadian Mounted Police arrested British Columbia resident Andrew Wakeling on charges of selling ecstasy across the border to customers in the United States. Canada stayed its own criminal case against Wakeling after the U.S. requested extradition.
Like the Maycock case, the extradition hinges on wiretap evidence obtained by the local police. But the question here is not the constitutionality of the wiretaps, which, as required by Canadian law, were obtained under a judicial warrant. Instead, Wakeling challenges Canada's decision to share the information obtained through the wiretaps with the United States. In addition to the constitutional protection "against unreasonable search and seizure," Canada has a strict federal privacy law that limits how government officials may use or disseminate information obtained through wiretaps. The privacy law does make an exception, however, for wiretap data disclosed to "a person of authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere."
The problem, Wakeling says, is that once a foreign government, like the United States, receives wiretap information, it is not obliged to obey any of Canada's privacy rules governing further use or dissemination. Furthermore, there is no oversight or transparency with respect to the sharing of wiretap data. It is up to the discretion of each individual police officer how and when to share such information with a foreign government. And as the statute itself says, disclosure is legal even if it is only in the interests of justice of the foreign country, not necessarily Canada.
In a 2012 opinion by Justice Richard T.A. Low, the British Columbia Court of Appeal rejected Wakeling's constitutional concerns and said it was not the place of the judiciary to question how or when Canadian police share citizens' private information with foreign governments:
The information gathered by lawful electronic interception becomes law enforcement intelligence. In my opinion, it is no different than information obtained from a police informer or information contained in documents that lawfully come into the hands of the police. If disclosure is in the interests of the administration of justice, there is no need for prior judicial approval or for notice or for reporting. Such requirements would formalize and hamper the inter-jurisdictional investigation of crime and sometimes the prevention of crime. Control of the use of lawfully-gathered police intelligence by foreign authorities is not practical and would be presumptuous.
The Supreme Court of Canada agreed to review the court of appeal's decision and heard oral arguments on April 22 of this year. Before the Supreme Court, Wakeling's attorney argued that, at a minimum, Canadian law enforcement must obtain express authorization from a judge before disclosing wiretap data to a foreign government. Justice Rosalie Abella suggested this could be done simply by adding a line to the existing warrants authorizing wiretaps. Chief Justice Beverly McLachlin pointed out that adding some "boilerplate" language would not do much to strengthen constitutional privacy protections. Justice Thomas Cromwell added that prior judicial authorization would still not prevent a foreign country from misusing wiretap data obtained from Canada. Justice Michael Moldaver seemed to side with the British Columbia courts and fretted that imposing any procedural limits on sharing wiretaps would raise "international comity concerns" and made "no sense." Moldaver suggested there was no longer an expectation of privacy once police obtained information through a legal wiretap.
But it's not as simple as that according to the independent government officials charged with overseeing Canada's privacy laws. Chantal Bernier, Canada's interim federal privacy commissioner, said in a filing with the Court the privacy law "fails to provide safeguards necessary to prevent unreasonable disclosures of sensitive and personal information." Her Ontario counterpart, Dr. Ann Cavoukian, explained in her own brief that most information disclosures to foreign governments are not even subject to a written agreement. Instead, police make ad hoc decisions about what information to share. Without taking a stand on the merits of Wakeling's appeal, both privacy commissioners agreed there needs to be greater transparency and police accountability in the future.
But how much can any court do to prevent the systemic violation of privacy by police agencies? The root problem here is not an outdated constitution or the absence of written protocols governing wiretaps. The problem is the U.S.-led war on drugs. You cannot, on the one hand, say governments must respect the personal privacy of their citizens, while on the other hand mobilizing a global police force to prevent individuals from using and purchasing the narcotics of their choice. The drug war drives a greater demand for police wiretaps, which in turn erodes society's support for privacy rights.
During the Canadian Supreme Court hearing, some justices thought there was already sufficient accountability in the present information-sharing regime because the United States would not risk "alienating" Canada by misusing its wiretap information. That seems a bit naïve. The U.S. routinely shows a disregard for its own Constitution and laws in prosecuting the war on drugs—a war that the Canadian federal government fully supports. The truth is that few countries want to risk alienating the United States by standing up to its bullying on the drug issue. It's easier to simply extradite first and ask questions never.