MICHAEL CLIFFORD: The murky area of the right to snoop

It is entirely unclear whether Gsoc is legally entitled to access any communication, writes Michael Clifford.

Serious questions remain on how much snooping is going on and whether or not it's warranted or even legal.

Have you had your phone tapped or hacked lately? Don’t know? Neither do I. But, piece by piece, worrying stuff is emerging to suggest that a whole lot of snooping is going on by State agencies.

This is not paranoia. It is based on genuine evidence emerging about how certain agencies justify to themselves the right to, for instance, listen in on telephone conversations.

It doesn’t stop there. Snooping these days encompasses examining private emails, texts, or information in closed social media. A profile of a person’s life can be assembled today through information gleaned from their communications.

There could be any number of reasons why a State agency would snoop on you. Perhaps you owe money to Revenue. Maybe a garda has come to the conclusion that you are a suspect in a serious crime.

Say you had a drink one night with somebody whom gardaí consider a threat to the security of the State, and now you are being monitored to ensure you don’t also pose a threat. Maybe you just cheesed off somebody in a State agency and he has managed to come up with a reason to have your phone tapped.

In May of this year, there was a report of a court case in which a detective garda sued the State because he had been sidelined at work after raising concern about the tapping of phones.

This detective alleged that innocent members of the public had phones tapped. He alleged that superiors put him under pressure to tap phones without going through the legal protocols. The State settled the detective’s claim.

The most worrying aspect to the snooping is that the law is not clear on the issue. Everybody accepts that there are instances when tapping phones is justified. But in this country the law is weak, open to misinterpretation, and, it would appear, frequently ignored.

One glaring example of the shortcomings of the law was evident on the publication of the Murray report last Tuesday.

Former chief justice John Murray was tasked with examining allegations which emerged in January 2016 that the phones of three journalists had been tapped by the Garda Síochána Ombudsman Commission (Gsoc).

The premise for tapping the phones was an investigation into the leaking of information from An Garda Síochána. The details of how one of the three journalists found out about the matter illustrate how far such snooping reaches into a person’s life.

Senan Molony is the political editor of the Daily Mail. His eight-year-old son played for a rugby team which was coached by a garda. Naturally, there was phone traffic between the father of the boy and the coach. At some point, the guard was called in by Gsoc and asked to explain contact with the journalist.

Quite obviously, phones were hacked, to observe traffic, and possibly tapped, to listen in to conversations.

The case illustrates how wide the net can be cast. In Gsoc’s case, it implies that anybody who has any kind of contact whatsoever with a garda could have their private conversations accessed. Journalists can have all their phone conversations accessed if they have any contact with a garda for any reason.

In addition, any garda against whom a complaint has been made could be subjected to the snooping.

On the other side of the fence, An Garda Síochána itself is apt to listen in on conversations, or at least track the phone traffic, of the rest of the citizenry, sometimes on the flimsiest of bases.

The Murray Report failed to examine the cases of the three journalists. A snapshot of the premise for snooping, and the frequency that it is done, would have been useful and valid, but may have caused something of a stir.

Instead, the judge looked at the legal framework in place, and pointed out where there were glaring shortcomings. These applied particularly to the Data Protection Act 2011.

If the three journalists’ cases which gave rise to the Murray investigation were examined it might well have provided vital context to the overall situation.

For instance, it is entirely unclear whether Gsoc is legally entitled to access any communication.

Gsoc is not named as one of the bodies authorised under the 2011 Act to access communications. A statutory oversight function — such as the requirement for a judge to review decisions — is not in place as there is for other bodies, like the gardaí and Revenue. There is no statutory requirement for Gsoc to compile an annual report on its activity in this regard as there is for the other agencies.

Instead, Gsoc draws its power from the Garda Síochána Act 2005 which gave it the same powers as the gardaí.

However, as legal academics, Shane Kilcommins and Eimear Spain, outlined in a paper last year, when Gsoc was being set up, “members of the legislature submitted that giving Gsoc powers to tap telephones would permit them to act ‘as a separate police force’.”

The justice minister at the time, Michael McDowell, was perfectly explicit on his view.

“I would not be comfortable giving the Ombudsman Commission the right to tap the telephones of politicians or journalists in pursuit of its criminal investigations.”

Yet, since its establishment, Gsoc, by its own account, has been involved in tapping phones. The Murray report didn’t go into how frequently this has been happening, nor did it even make clear whether or not Gsoc even sought legal advice on its powers.

One obvious conclusion is that any criminal prosecutions by Gsoc which involved use of the power must now be highly suspect. Another is that dozens of people, including gardaí and journalists, may have had their rights grievously infringed by the State.

Murray did acknowledge that there is a problem.

“There is an evident need for greater clarity and certainty in the matter of Gsoc’s entitlement to make disclosure requests pursuant to section 6 of the 2011 Act,” the judge reported.

“As already indicated, given the highly intrusive nature of a system of data retention and disclosure, and the concomitant threats it poses to the fundamental rights of those affected by its operation, it is essential that all avenues of access to private data should be expressly provided for within the framework of the governing enactment in the area.”

Justice Minister Charlie Flanagan has prepared a provisional bill on data protection on foot of Murray’s report. However, serious questions remain on how much snooping is going on and whether or not it’s warranted or even legal.

Journalists have a particular concern in this area as it impacts on their ability to hold the State to account through contact with people who have information to be passed on in the public interest.

It goes beyond the media, though. Citizens have a basic right to privacy. Major vigilance is required to ensure the State is not trampling on that right.

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