Keeping tabs on the criminals

State bodies have been allowed to snoop on suspected criminals since 2009, but a lack of resources has held them back from more cases, writes Conor Ryan

BORN amid controversy regarding its threat to civil liberties, the extent to which the State has authorised snooping of its citizens has been restrained more by cost than conscience.

Since it has been enacted, the Criminal Justice Surveillance Act 2009 has helped to build cases against criminals with sophisticated plans to compromise the State’s security or execute substantial smuggling operations.

However, keeping tabs on drug lords, dissident republicans, tax evaders, and smugglers has proven a labour-intensive process.

Independent monitoring of the act suggests there were no more than 400 cases where spying devices were used in the first two years of the new law. A significant number of these involved bugs or trackers that were in place for less than three days.

The watchdog of the act, Mr Justice Kevin Feeney, said the money and staff needed to keep this type of investigation going meant it was often more practical to use some traditional methods.

“It remains the case that the cost and manpower commitment of surveillance carried out under this act is such that its usage is limited by the costs involved in such surveillance,” he said.

“It follows that there is a considerable cost and manpower commitment involved in carrying out surveillance under this act which have been carefully considered both as to the suitability for deployment and the requirement for surveillance...

“The cost also insures from a practical point of view consideration would always have to be given to less technical and cheaper forms of investigation or the use of alternative means.”

The bodies that can snoop on citizens are An Garda Síochána, the Revenue Commissioners, and the Defence Forces.

Covert surveillance can only be used where serious crimes are suspected. The three organisations are prohibited by law from giving out any information on the operation of the surveillance act or the circumstances in which it has been used.

This means there are no precise statistics available on when these techniques have been authorised or what level of activity prompted the inquiries.

The only person who reviews the standards employed by the organisations and the use of secret surveillance is Mr Justice Feeney, who prepares a report each year on how it was used.

He has been satisfied that in the first two years of the new law it was used properly and he got full co-operation when he went about investigating.

However, Republican Sinn Féin has raised concerns and riled against surveillance of its members. Late last year, it published a photograph of a smoke alarm discovered in the home of a Ballyfermot republican.

This contained a bug which RSF said had been planted while the target was injured by local drug dealers.

A spokesman for the organisation has said many of its members have been unfairly targeted with listening devices.

Mr Justice Feeney has been privy to very sensitive material, including audio recordings and transcripts of bugged conversations.

Both the gardaí and the Defence Forces have supplied him with cases that involved threats to national security with a “significant international dimension”.

While most of the applications for surveillance have been dealt with in-house by the gardaí, rather than seeking approval from the district courts, Mr Justice Feeney said these shortcuts were justified by the urgency of the investigations.

Garda investigators have preferred short, sharp surveillance missions triggered when events are organised, particularly by dissident republicans.

Mr Justice Feeney said the expense of extended inquiries was prohibitive.

“Surveillance must be covert and this requirement increases the manpower necessary to ensure that any surveillance remains undetected,” he said.

“The manpower required includes not only the use of sufficient persons to try and ensure that the surveillance will remain but also provision has to be made for security of the members of An Garda Síochána involved in the surveillance.”

When Mr Justice Kevin Feeney delivered his report to the Oireachtas in Nov 2011, no prosecutions has been brought before the courts arising out of evidence gleaned under this act.

Since then, cases originating in Galway and Limerick have cited material got from surveillance operations.

A case has been brought to the Supreme Court in relation to the scope of data retention laws, but, so far, no such appeals have been made on the grounds of surveillance.

Irrespective of successful prosecutions, the surveillance operations have had immediate impact on the supply of the illegal goods.

Over 35m illegal cigarettes smuggled into the country have been detected using tracking devices placed by customs officers.

However, as law officers become more proficient with the preparation of cases with the evidence from these operations so have criminals in protecting themselves against intrusion.

The Communications Regulator has already outlawed the use of signal jamming devices.

However, there continue to be fears that criminals have targeted members of the gardaí with their own surveillance.

Data rules

Since last year the law has looked to spell out exactly what data needs to be retained by telecoms companies and for how long each type of information should be stored for.

TEXT MESSAGES

* What can be accessed:

This is a grey area. The phone number sending it and the phone number receiving are available, as are the time and date. However, because text messages are data, it is possible the words themselves might be lawfully obtained. Telecom companies are unclear of their obligations in this regard.

* Time information is kept: Two years.

LANDLINE CALLS

* What can be accessed:

Recordings of phonecalls are not kept or accessible. Phones can be bugged, but this is through separate legislation. A detective, army officer, or customs official looking for phone records will be able to get the time calls were made, their duration, and the relevant phone numbers.

The name and address of the sender and receiver must also be kept.

The phone companies will not be told the identity of the person under investigation but will be supplied a number on which to release information.

* Time information is kept: Two years.

MOBILE PHONES

* What can be accessed:

Electronic devices have more elaborate imprints than traditional units but, because they are mobile, they are not traceable to certain address.

However, each mobile has a dedicated subscriber identity. It is stored inside the SIM card and transmitted automatically to networks even when it is roaming.

It also has an equipment identity, which is unique and can be used to block or trace the use of certain handsets.

The activity of these identifiers has to be retained in case investigators request it.

* Time information is kept: Two years.

SIM CARDS

* What can be accessed:

There is evidence that criminals use hundreds of pre-paid SIM cards to avoid being traced or bugged. For this reason, SIM cards themselves are covered under the Data Retention Act. In this case, the first time an anonymous SIM accesses the network should be retained along with the device it was used by.

* Time information is kept: Two tears.

EMAILS

* What can be accessed:

The time and date of the transmission are available along with the address of the computer receiving the message. The subject of the email is not available. Investigators can see which computer it was sent from and what service it used. The log-in times for email accounts are also kept. The content of the message is not accessible under the act.

* Time information is kept: One year.

SIGNAL DATA

* What can be accessed:

Phone signals and wireless connection records contain important information. Because they connect to radio masts the location of a particular device at a given time can be pinpointed precisely. This was used successfully in the conviction of Joe Reilly for the murder of his wife in the Naul. Gardaí tracked the journey of his phone on the morning his wife died to undermine his account of his movements.

* Time information is kept: Two years.

INTERNET DATA

The information available relates to the user’s name, the address of the computer, the phone line in use, and the website accessed. The date, time, and length of time people are logged on to an internet service or an email account, such as Gmail.

It is particularly relevant in the area of child porn-ography. In Ireland, this has mostly revealed people who access illegal material rather than generators of pornography who post it online.

* Time information is kept: One year.

For more in this special investigation, click here.


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