Concerns 'spying powers' still being used despite ruling Irish legislation breached EU law

Concerns 'spying powers' still being used despite ruling Irish legislation breached EU law
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The use of a controversial spying power by law enforcement agencies has fallen sharply since a landmark ruling that Irish legislation breached EU law.

However, one legal authority expressed concern that the powers are still being used to a significant extent despite the ruling.

TJ McIntyre, associate professor of law at UCD, said the exercise of the powers is in breach of both the High Court judgement of December 2018 and previous European court rulings.

The High Court ruled that 2011 legislation allowing State agencies to access people’s private communication data provided for an “indiscriminate” data-retention regime and breached privacy rights under EU law and the European Convention on Human Rights.

Figures provided by the Department of Justice to the Irish Examiner indicate a projected 60% drop in the use of the Communication (Retention of Data) Act 2011 by the end of this year, compared to 2018.

The data shows:

  • 4,274 disclosures of communication data in 2019 (to end of September), compared to 13,879 for all of 2018;
  • If disclosures are made at the same rate for the remaining three months of 2019, it would indicate a drop of 59% in disclosures (from 13,879 to 5,697);
  • Disclosures to gardaí had fallen from 13,545 in 2018 to 4,047 by the end of September. The department said the 2019 figures do not include a further 2,404 subscriber disclosures to gardaí under the Data Protection Act 2018.

These figures are included in the communication data figures for years before 2019. This would bring the total number of disclosures, including subscriber data, up to September 2019, to 6,678.

That would indicate a total projected figure of 8,900 disclosures by the end of the year (5,697, plus 3,205), suggesting a total reduction of 36% on 2018.

Communication data includes mobile phone records (phone numbers, duration of calls, and location of calls), internet data records (IP address of device, email addresses, name and address of user, web history, and credit card information), and subscriber data (number of phone and name and address of user, if bill pay).

The department did not provide a breakdown of the 4,274 disclosures by the three separate bases upon which agencies can seek records under the 2011 act: Investigation of serious crime, security of the State, and the saving of human life.

In his High Court ruling, Mr Justice Tony O’Connor specified that his declarations only related to the investigation of serious crime, and not State security and the saving of human life, and concerned telephone data, not internet records.

The State is appealing this judgement to the Supreme Court, claiming the consequences of not having access to retained data for the investigation and prosecution of serious crime was “stark” and that there was “no alternative”.

The High Court judgement, stemming from a case taken by convicted murderer Graham Dwyer, followed a succession of European court rulings and domestic inquiries (Murray), which undermined the legal basis of the retention laws.

Prof McIntyre expressed concern at the “quite large” number of disclosures still taking place, and that he suspected that gardaí were keen to continue using the act in serious crime cases.

“I’d be stunned if they weren’t still using it for serious crime,” he said. “They have continued to use it as an intelligence tool, not an evidential tool, as they know it would be inadmissible.”

He said the second ECJ case (Tele2) in December 2016 found that EU law applied to domestic legislation and prohibited general and indiscriminate retention of data. While the High Court ruling was confined to the investigation of serious crime, he said the EU rulings included national security, while excluding for the saving of human life.

“The European judgements are binding on the Irish State, but it has continued on regardless,” said Prof McIntyre.

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