Cabinet to mull laws on online bugging

The Government is to be briefed in the coming weeks on forthcoming laws giving law enforcement agencies powers to intercept email and internet communications.

The measures are contained in proposed legislation to legally underpin online bugging — powers already in place in relation to telephone communications.

In a development since the new powers were mooted last November, the Department of Justice said it was considering “enhancing safeguards” in terms of the granting and monitoring of the system.

Digital Rights Ireland said these safeguards will have to involve authorisation by a judge or an independent body — in line with a ruling at the European Court of Justice last December.

Currently, under Irish law, the justice minister authorises the use of phone bugging by gardaí, the Defence Forces, and the Garda Ombudsman.

A department spokesperson said: “The need to enhance powers in this regard is absolutely essential given the importance of taking strong action to tackle terrorism and organised crime.

“Recent events in Manchester and London serve only to remind us of the ongoing need to ensure that the agencies charged with defending the security of the State must have all the assistance necessary.”

The department said it had consulted with industry, privacy, and rights bodies.

The spokesperson said Tánaiste Frances Fitzgerald believed protection of citizens’ fundamental rights was of “paramount importance” and that consideration was being given to the “enhancement of safeguards”.

Telephone calls can be intercepted in the investigation of serious crime and protecting State security.

The department said that, “under current arrangements”, only the justice minister can authorise bugging and that the system is overseen independently by a High Court judge who reports to the Taoiseach.

Last November, the department said “no change” was proposed to these arrangements.

However, the spokesperson yesterday said: “Consideration is being given to ways in which the safeguards currently in the act may be supplemented or enhanced.”

Law lecturer TJ McIntyre, chair of Digital Rights Ireland, said the department has had to amend its proposals following a European Court of Justice (Tele2/ Watson) decision last December in which it ruled that access to phone records must be approved by a judge or an independent body.

Mr McIntyre said this applies even more so to accessing the content of those conversations and would apply to both phone and online communications.

“The protections will have to apply to all communications, email and phone, traffic data and content,” he said.

He said the UK government recently introduced powers which retained the power of authorisation in the home affairs minister, but with a judicial oversight.

“The department here might try and borrow the UK approach, but I don’t think that’s a runner. The ECJ decision is very clear.”

One thing that is less clear is if the forthcoming laws will include access to encrypted online technologies, such as WhatsApp.

Garda sources said their inability to access encrypted technology was a “major failing” and resulted in “significant intelligence gaps”.

Mr McIntyre said “very opaque” UK laws could give it the power to compel service providers to build a “back door” into encrypted technologies.

He thought it was “very unlikely” the department would do this unless it was part of a wider EU initiative.


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