Police detectives may resort to the security services in their arsons investigations after an appeals court last Wednesday ruled against the disclosure of location data to investigators that would identify mobile phone owners who were close to the scenes of the crimes.
Judge Philip Sciberras closed the door to the police in his sentence dismissing their requests for information collected from mobile bay stations in connection with last year’s arson attacks on migrants’ rights campaigners and journalists.
Police sources say the only avenue left for investigators to acquire the data from Vodafone and Go Mobile would be through the involvement of the security services.
This is because despite the Data Protection Commissioner’s ruling in favour of the disclosure of the data and a subsequent Data Protection Appeals Board confirmation of the ruling, last Wednesday’s sentence revokes the two rulings and leaves detectives without the evidence they require.
Home Affairs Minister Tonio Borg in fact confirmed with MaltaToday that the Attorney General was analysing the implications of Mr Justice Sciberras’s sentence on the security services.
“There’s not much we can do about the sentence,” Borg said yesterday night. “The AG is however looking into its implications on the security services, whether this affects them at all.”
Legal experts say the sentence should not have a bearing on the security services.
In fact, Mr Justice Sciberrras may have inadvertently forced the police to resort to the secret services to avert legal wrangles that only serve to prolong their investigations.
“This decision is actively making the police toothless,” says data protection legal expert Antonio Ghio. “Bottom line is that telecommunication companies have more power than the police. I’m sure they are glad they will not enter into the expense of extrapolating the data requested by the police.”
Months before the sentence was delivered, Police Commissioner John Rizzo had expressed his exasperation at the stalled investigations because of the companies’ refusal to cooperate.
“There is evidence there which we cannot use until the case is decided by the courts,” Rizzo said last February. “It’s not just about this case. We could have murder cases in the future which would require the same type of data to help us in investigations, and it should be made available to us.”
The data protection commissioner had set strict guidelines for the release of the requested personal data. The police had to use the data exclusively for the specific arsons investigations, and the information had to be erased if it was found to be irrelevant to the investigation.
Yet the mobile operators cited their clients’ “human rights” and data protection in refusing to collaborate.
The data protection commissioner said that while in the Michael Grech murder investigation the mobile operators complied “without creating fuss about the implications on data protection,” in this time “maybe because of the expenses and time involved, or because they realised that the police are repeating their requests, the appellants… are playing the defendants of data protection but only for their economic and financial expediency”.
Ghio said: “Since when have mobile phone companies become champions of personal data? Or are they simply using data protection issues as an excuse in order not to enter into the hassle and expense of providing the information being required by the police? Who is gaining out of all this? The police, the data subjects, the mobile companies, or the arsonists?”
Interestingly, one of the two mobile operators had a vacancy advert for a data mining specialist published on the newspapers on the same day the sentence was delivered.
According to the job description, candidates should “be able to visualise, understand and interpret requirements for meaningful data from seemingly unconnected datasets”.
The advert confirms that the mobile operators are prepared to analyse the data for themselves but not to provide it to the police.
“In my opinion, this sentence reflects the fact that we have not yet embedded a data protection culture in our country, as we keep using data protection as a smokescreen to withhold useful information whenever it is needed,” Ghio said.
“The data protection act provides the general principles – the basic commandments for the protection of personal data – here in Malta we also have specific regulations relating to the processing of personal data by the police and that’s the legislation the judge should have referred to.”
“With the judge’s argument we van remove all CCTV cameras. If we use his reasoning, it means that if there is a hold-up, the police cannot access footage recorded by CCTV – relative to a geographic space and time – because the privacy of passers-by will not be respected and everyone in the footage will be a suspect.”
Known as location data, the information requested by the police would reveal the numbers of all subscribers who had their mobile sets in the vicinity of the arson attacks, as captured at the time by the mobile operators’ antennae, also called repeaters.
The arsons falling under investigation include the attack on the Sliema residence of Jesuit Refugee Service lawyer Katrine Camilleri in April 2006, the attack on the Jesuit Convent in Birkirkara, the torching of columnist Daphne Caruana Galizia’s residence in Bidnija, and the attack on the residence of MaltaToday editor Saviour Balzan in Naxxar in May last year.
This was only the second time that Vodafone and Go Mobile are being requested by the police to pass location information about their clients, after a similar request was accepted in the investigation of the murder of Gozitan lawyer Michael Grech, who beaten up and shot dead outside his house three years ago.

www.maltatoday.com.mt/2007/02/18/t8.html