Gardaí will keep accessing details despite warnings

Gardaí are set to continue accessing communication data of individuals despite warnings in the Murray report about the dangers of breaching EU law.

As Justice Minister Charlie Flanagan admitted gardaí will continue “in certain circumstances” to seek traffic data from service providers, legal expert TJ McIntyre said they were “storing up” problems, including convictions being possibly overturned and legal actions being taken by individuals.

In his 190-page report, Mr Justice John Murray said that much of the data retention system in Ireland was “precluded by EU law”.

He said “consideration should be given to the extent that, if at all, statutory bodies should continue to access data” under the Communications (Retention of Data) Act 2011 pending amending legislation to conform the system with EU law and the European Convention on Human Rights.

“The former chief justice is very clearly saying that the legal regime is inadequate and may be storing up problems in the future, for example, convictions possibly being overturned, actions being taken by individuals and investigations being pointless,” said Mr McIntyre, Chair of Digital Rights Ireland.

Mr Flanagan said amending legislation would be introduced “in the coming months”. Asked if this would prevent the practice from continuing, he said further cases may be allowed “in certain circumstances”.

“There may well be certain circumstances where access to data may be required — what this legislation will do will be to clearly define what those circumstances are,” he said.

The Murray report says either a panel of district court judges or a tribunal must authorise all requests for data — and the draft legislation provides for the judicial option.

The draft Retention of Data Bill 2017 does not include key recommendations in the report, including the establishment of an independent monitoring body and special legal protections for journalists.

The report said: “Given the importance attached to the issue by European law and jurisprudence, national legislation must also provide for a robust form of monitoring and supervision of service providers by an independent authority with a clearly defined role and expressly associated powers and duties. Providing the necessary resources, including expert personnel, for such effective monitoring and supervision is essential.”

Even though the Murray review was originally tasked by the Government to examine the laws around accessing journalists’ traffic data, the draft scheme contains no specific provisions in relation to journalists.

This is despite Murray recommending that only a High Court judge deal with data requests involving journalists as well as other recommendations, including the prohibition of attempts to identify sources.