More robust oversight of surveillance laws is ‘crucial’, experts warn
Campaigners said Ireland had “almost nothing” like the official inspection of law enforcement and intelligence bodies that exists across the water.
It follows the publication last week of a major report on surveillance and interception powers by Britain’s terrorism watchdog, headed by Professor David Anderson.
Digital Rights Ireland (DRI) is calling for robust judicial oversight to be standard across all areas of surveillance and data disclosure here.
DRI chair TJ McIntyre warned that Irish law in the area of accessing communication data is quickly becoming a “crucial one” given the presence here of top internet giants, such as Google, Microsoft and Twitter.
He said courts and governments in the US and the UK were exploring whether their laws could reach into Ireland and force these companies to disclose personal data. And he said that a pending High Court case taken by DRI is likely to strike down Ireland’s laws on data retention.
“We have almost nothing in comparative terms [regarding oversight] to what they have in Britain,” said Mr McIntyre, a law lecturer in University College Dublin.
In addition to the UK Independent Reviewer of Terrorism Legislation and Investigatory Powers, Prof Anderson, Britain also boasts the Office of Surveillance Commissioners and the Interception of Communications Commissioner’s Office.
“Britain has different sets of surveillance commissioners,” said Dr McIntyre. “They have staff and technical experts, or legal experts, working for them and are far better equipped.”
He said the Irish system of surveillance oversight is conducted by designated judges, which he said was “unsatisfactory”.
He said: “The reports on interception [or phone taps] and on data retention are very short and almost worthless.”
Mr McIntyre said this compares to the reports of the judge who examines the use of surveillance.
“They are much more detailed reports and they are the minimum required,” he said.
Under Irish law the power to intercept phone calls —under the Postal and Telecommunications Acts — is authorised by the minister for justice.
Under the Surveillance Act 2009, bugs are authorised by a district court judge, while, under the Communications Act 2011, access to telecoms data is authorised internally within the police.
“We have different sets of authorisation for no particular reason,” said Dr McIntyre, “and we believe that in all cases judicial authorisation should be required.”
Neither the reports on phone interception nor surveillance provide details on the scale of usage, which is provided by British watchdogs.
Government reports to the EU suggest that between 8,000 and 12,000 requests are made by gardaí every year to internet and phone companies, although Dr McIntyre said it could be higher.
Dr McIntyre said there was concern at the Garda system for authorising these requests, which is supposed to be done beforehand by a chief superintendent.
“The Data Protection Commissioner found that they were rubber stamping, after the request [to the companies] had been made, instead of beforehand,” said Dr McIntyre.
A legal case taken by DRI against Irish and EU data retention laws here ended up last year in the European Court of Justice, which struck down EU data retention laws.
DRI is now waiting for its hearing in the High Court to strike down Irish data laws.
Dr McIntyre said this area was “far more important than many realise”.
He said the governments and courts in the US and the UK were trying to access information held by such companies in Ireland. He said it will be “crucial” for the State here to regulate the area.
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