Report: Judges should rule on accessing data
In relation to journalists, the judge should be a High Court judge, the former chief justice says in his 190-page report.
Mr Justice John Murray said an EU court ruling last December “sweeps the ground” from the mass surveillance system in Ireland — and that it “may no longer be lawful” to compel service providers to retain indiscriminately private communication data.
Communication data, also known as metadata, does not include the content of telephone or digital messages but covers all the traffic and location details, including on the sender and receiver, time, and frequency of messages and websites visited.
Mr Murray was commissioned by the Government in January 2016 following revelations that the Garda Ombudsman had accessed journalists’ phone traffic data from service providers, amid questions over its legal power to do so.
The Murray report, sent to the Department of Justice last April, was published by Minister Charlie Flanagan yesterday. He said Mr Justice Murray’s review extends beyond the original terms of reference to include European case law and its impact on people generally.
The report says access to data for the purpose of identifying a journalist’s sources should be prohibited except in stated circumstances and that any such request must be approved by a High Court judge.
It says data requests should only be permitted when the journalist is the “object of investigation” for suspected commission of a serious criminal offence or for unlawful activity which poses a serious threat to the security of the State.
He states that contrary to what is currently permitted, requests cannot be for the purpose of investigating an offence committed by another person, except for particular situations.
The report says service providers should have a statutory duty to destroy spent data and that the data must be stored in Ireland. It says a monitoring body for service providers, possibly the Data Protection Commissioner, should be set up.
The report says only a limited set of senior people in state agencies — the gardaí, Defence Forces, Revenue, Gsoc, and the Competition and Consumer Protection Commission — should be able to make the requests.
The agencies should set out a proposal showing details of the offence under investigation, relevance of the data, and the intended objective of getting it, and that an attempt has been made to obtain the objectives by less intrusive means.
It says designated officers of the agencies must have reasonable grounds that the disclosure of the data relates to investigation of serious offences, safeguarding the State or saving a human life.
Mr Justice Murray repeats the same conditions in relation to security of the State.
The report says legislation should require that “all requests” for the disclosure of data “are subject to prior independent authorisation by a judge or a statutorily independent tribunal”.
Exceptions can be provided for to address “urgent situations”.
Mr Justice Murray recommended that the presidents of the courts designate certain district and circuit court judges in order to build up specialist experience.
He said a tribunal would allow for “greater flexibility” and include people with a wide range of experience, including specialist knowledge of “human rights, communications technology, and forensic investigation”.
Mr Justice Murray does not say GSOC was wrong in law in interpreting that it had the authority to access journalist data, as had been claimed, including by some legal commentators.
While acknowledging questions “concerning the validity” of Gsoc’s interpretation of the law, Mr Justice Murray says his review is recommending its power be “explicitly stated” in law.
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