Draft legislation aimed at reforming State access to communication data is in breach of European law, a leading human rights body has warned.
The Irish Council for Civil Liberties (ICCL) called for a super surveillance watchdog to oversee all state surveillance activities — to include not just communication data but interception of communications, deployment of surveillance devices, and use of informants.
The organisation, along with the National Union of Journalists, appeared before the Oireachtas justice committee for hearings on the General Scheme of the Communications (Data Retention) Bill 2007.
Justice Minister Charlie Flanagan published the draft heads of bill in early October along with the Murray report, which reviewed the law in the area.
The report said the current Irish system amounted to mass surveillance and said it “may no longer be lawful” to compel service providers to retain indiscriminate private communication data.
Communication data does not include content of telephone or digital messages but covers all traffic and location details, including on the sender and receiver, time and frequency of messages, as well as websites visited.
The Murray report called for the replacement of the current system, with no independent authorisation of requests, with prior authorisation from a district court judge (High Court for journalists) or from an independent agency. He also called for an independent monitoring body for the communication companies.
While the Government’s bill provides for district court authorisation, it does not include High Court authorisation for journalist data. Neither does it allow for an independent agency to authorise requests, nor a monitoring body for the industry.
In a joint submission with Digital Rights Ireland, the ICCL said the bill failed to bring Irish law into line with European jurisprudence.
Elizabeth Farries, ICCL information rights project manager, said the current bill is “invalid according to European Union law”, citing two landmark cases known as Tele2 and Digital Rights Ireland.
TJ McIntyre of Digital Rights Ireland previously told the committee that the bill as proposed would end up being tested in the courts.
Ms Farries said the Murray recommendations represented the “minimum standard and reflected EU law” and must be implemented to bring Irish law into line.
She said the bill allowed for emergency requests for journalists’ data without judicial approval — again contrary to EU law.
She said that, despite the claims of the Department of Justice, the current oversight system was “not working”, citing the part-time nature of current High Court reviews, the formulaic one-page reports produced, and the general lack of data.
The ICCL said the bill’s proposal for district court judges to grant authorisation was not sufficient in that the judges were busy and did not have sufficient resources and competence — including technical knowledge — to exercise full control.
The ICCL and Digital Rights Ireland argued for a resourced, independent agency dedicated to this purpose — and said this agency should examine all surveillance activities.
“We recommend that the designated judge be replaced by an independent supervisory authority, with parliamentary accountability, to be chaired by a judge, and supported by a secretariat with sufficient technical expertise and financial resources to provide detailed support including formalised public reports,” states their joint submission.
“This supervisory authority should also take on the oversight of interception of communications, use of surveillance devices, and the use of covert human intelligence sources.”
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