Judge: Cops can't have Scoon's phone passwords

A HIGH COURT judge has dismissed an application by the police for a special warrant under the Interception of Communications Act to force businessman Adrian Scoon to disclose the passwords and provide the biometrics and keys for electronic devices they seized during a search of his home in January.

In a written decision, Justice Geoffrey Henderson said one had to be careful in limiting Scoon’s right to privacy beyond what was reasonable.

“In my judgment, the disclosure requested is not proportionate to what is sought to be achieved.”

On January 5, police searched Scoon’s home in Maraval and his business place at Queen’s Park West, Port of Spain, as part of their investigation of the seaside brunch event which happened in Chaguaramas on December 26, when some 100 people were detained on the craft which Scoon claimed was converted into “a floating restaurant.”

Those detained after the event were released. During the search, police seized Scoon’s cellphone and laptop and other electronic devices and also sought the special warrant after he refused to provide them with the passwords and other data to access the information on them.

He is also challenging the legality of the warrants used for the searches and the seizure of his phones and laptop. This matter is expected to come up for hearing again in March, while police are yet to lay charges despite having reportedly received the advice of the Director of Public Prosecutions.

The searches came after the special restaurant licences issued to him for the Ocean Pelican were reportedly revoked by the comptroller of the Customs and Excise Division when Finance Minister Colm Imbert revealed he raised concerns with granting them because of pandemic restrictions.

Scoon has insisted he received permission to operate the vessel as a floating restaurant and complied with safe-zone protocols.

Henderson said to satisfy a test for proportionality, the request for disclosure must be rationally connected to what is sought to be achieved by the disclosure.

He said the police, acting Insp Ramjattan of the Carenage police station, said in the application the police intended to gather advertisements to the party to assist in its investigations and asserted the party was promoted by Scoon via WhatsApp, Instagram and Facebook.

“This court must be satisfied, then, that the disclosure of the passwords for the respondent’s devices, social media accounts and email is proportionate to what the applicant seeks to achieve.”

He said he was of the view what was sought by the police “seems excessive and disproportionate in the face of what the applicant seeks to achieve, that is, to gather evidence of promotion of an event.

“Not only does the applicant seek passwords and access to the respondent’s devices, the applicant also wishes to have access to all of the respondent’s social media accounts and his emails.

“The applicant, by its own admission, has some evidence of the advertisement of the party. While it is within the discretion of the applicant to seek to gather additional advertisements, I see no rational connection with that aim and the wide breadth of the orders sought.”

Two of the warrants specifically sought to search for SMS messages, emails, text messages, installed applications data including WhatsApp messages, Instagram messages and posts and Facebook messages.

Henderson said it was not for him to determine the validity of the warrant which led to the police coming into possession of the devices, since that was already being challenged, but only be satisfied that if Scoon had in his possession the “key” to the devices.

He found that Scoon did but said when he analysed if there were reasonable grounds to believe the disclosure of the “key” was reasonable for the purpose of the investigation and necessary, he said, “disclosure must be so important that the investigation cannot do without it; it must be absolutely needed or essential.”

“The applicant stated that the purpose of the disclosure of the respondent’s keys or passwords is to gather messages advertising a party in order to further his investigation into the aforementioned breaches of the covid19 regulations.

“Such disclosure only becomes necessary if it is absolutely needed or essential to the applicant’s investigation. The applicant has not established that the disclosure is absolutely needed. Further, the disclosure cannot be regarded as necessary for the purpose of the investigation if the information regarding the advertisement of the party can be gathered by adopting some other course.”

Henderson also pointed out that Ramjattan was already in possession of an advertisement for the party that was sent via WhatsApp to a confidential informant.

“This supports the assertion that there do exist other means of gathering the advertisements. As such, the disclosure is not essential for the purpose of investigation the alleged offences,” the judge said.

The police was represented by attorney Verson Jeanville while attorneys Kiel Taklalsingh and Stefan Ramkissoon represented Scoon.