State to examine law around its right to access communications data

The Government is to ask the State’s legal experts to examine the law around its right to access communications data but not before it gives law enforcement agencies the power to intercept email and internet content.

The Government said the new powers are needed as a matter of priority, while the legal review is a longer-term initiative.

Digital rights campaigner TJ McIntyre said that the sequencing reflected the characteristic approach of “ready, fire, aim” of the Department of Justice and said it could jeopardise future prosecutions.

At its meeting last Tuesday, the Cabinet backed proposals from Tánaiste and Justice Minister Frances Fitzgerald to draft laws extending bugging powers to include encrypted internet communication services, emails and web usage.

Gardaí, Revenue and the Defence Forces can currently seek a ministerial order to intercept phone communications, based on pre-internet laws.

The development this week comes on the back of requests by gardaí for powers to lawfully access modern communication content and long-running debate and legal action in Europe Ireland on access to communication data.

A Department of Justice spokesman said they will bring forward the proposals in close consultation with the attorney general and “other stakeholders”.

He said the Law Reform Commission, the State’s official legal advisory body, will also be asked to examine the legal issues surrounding the State’s right to access communication data and an individual’s right to privacy and freedom of expression.

However, he told the Irish Examiner that these were two separate processes and that the legislative proposals will be drafted before the expert body conducts its review. The spokesman said the new provisions were absolutely essential in combating organised crime and terrorism and were “common in other jurisdictions”.

The modern communications are not specified but are thought to include private or encrypted internet communication apps, such as Whats App, Signal and Threema, as well as email and internet content, including social media posts.

The spokesman said the Law Reform Commission review would examine international models of best practice and take account of the “ever-growing importance” of the need to balance investigative powers with fundamental rights to privacy and freedom of expression.

He said it was necessary to “frame our laws” in light of EU legal developments.

He said the commission’s review would form the base of a broader review of the law.

TJ McIntyre, chairman of Digital Rights Ireland said it was “remarkable” that the Department of Justice was pushing ahead with extending surveillance powers without having a “full public review first”.

He said this was particularly so in light of legal developments in Europe. He said introducing new laws before the Law Reform Commission conducted its review “reflects the characteristic approach of the Department of Justice approach, which is ready, fire, aim”.

He said existing problems with the laws, including safeguards and oversight, should be remedied first.

He said court prosecutions or convictions could otherwise be set aside because of flaws in the evidence from surveillance. Digital Rights Ireland has a High Court case to strike down Irish data retention laws.