Department backs increase in garda attempts to access email

The Department of Justice has defended the growing number of cases of gardaí accessing emails and said existing laws allowed for the practice.

The Microsoft Transparency Report on Thursday highlighted the increase of cases in which gardaí requested access to digital communications, following a similar report published by Google last year.

It prompted a number of questions from the chairman of civil rights group Digital Rights Ireland, UCD law lecturer TJ McIntyre, as to whether or not current laws allowed for the practice and provided adequate oversight.

Yesterday, the Office of the Data Protection Commissioner weighed in with a statement, in which the commissioner said: “We would be concerned that any such access to personal data be on a sound legal basis, only be sought where serious criminal behaviour is being investigated, and be subject to proper oversight.”

In a separate statement, a Department of Justice spokesman said a number of existing provisions granted gardaí power to access and seek access to email and other online communications.

“I can confirm that, where a computer has been used in the commission of a crime, the gardaí have powers to search the computer for information which could be relevant to a prosecution,” the spokesman said.

“This exists in a number of acts, in relation to different offences.”

She said the Theft and Fraud Offences Act 2001 Section 48 was one such legal provision, as it allows a member of An Garda Síochána, acting under the authority of a warrant under this section, to “operate any computer at the place which is being searched, or cause any such computer to be operated by a person accompanying the member for that purpose” and also requires any person at that place who appears to gardaí to have lawful access to the information in any such computer to give any password necessary to operate it.

It also contains other provisions, but Mr McIntyre had queried whether or not existing laws adequately covered the contents of emails, Skype messages, and similar forms of electronic communication, as opposed to the seizing of an actual computer.

The department spokesman said: “There are also provisions in law which provide that the Gardaí may apply to a court for an order to compel a person or organisation to disclose specified information. For example, the 1994 Criminal Justice Act (section 63) contains such a provision in regard to “any particular material” that the gardaí require to investigate drug offences.”


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