Legal doubts over spy law 'tilts balance in favour of criminals'

Legal doubts over spy law 'tilts balance in favour of criminals'

Figures released by the Department of Justice show a 63% drop in the use of powers by State agencies to access communication data. Picture: Pexels

Legal restrictions on the State’s power to access private communication data has “tilted the balance in favour of the criminal”, a former garda assistant commissioner has said.

Pat Leahy said it was “unsustainable” for the State to deliver its duty of care to its citizens if new legislation was not introduced.

Figures released by the Department of Justice to the Irish Examiner show a 63% drop in the use of powers by State agencies to access communication data.

This data, also known as metadata, gives State agencies access to an array of personal information, such as logs of phone calls and texts, duration and location of calls as well as location of a phone, in addition to internet records such as IP address, email address, and credit card information.

In December 2018, in the Graham Dwyer case, the High Court ruled that the Communications (Retention of Data) Act 2011 provided for a “general and indiscriminate” system for retaining data and said this breached EU human rights laws.

The Supreme Court has referred the law to the European Court of Justice.

Mr Leahy said that accessing a phone or a computer “could now be compared to entering a person’s home” given the amount of personal information it contains.

He said that while there was an “absolutely compelling requirement” for laws to be in place to enable this access, there must also be commensurate “civil liberties protections”.

He said legal uncertainty in Ireland about this had been flagged for some time.

The former assistant commissioner for Dublin said criminals have been exploiting this uncertainty given the evidence this data gives of planning and execution of crimes.

“This evidence, which is critical to the proper investigation of serious crime in a digital age, is now potentially out of reach of An Garda Síochána and other agencies due to lack of effective legislation incorporating a robust access system that includes independent, prior permission for legally balanced, necessary, and proportionate access," he said. 

There is no doubt that the current situation has tilted the balance in favour of the criminal and only appropriate legislation will address this serious problem.” 

Security consultant Sheelagh Brady said the continued lack of clarity was likely to result in a “more contained use” by agencies outside the cases of national security and to save a life.

She said this data can provide the corroborative evidence needed by agencies. 

She said that given much of people’s lives are spent online and that people carry their devices most of the time, access to this information can help “fill in the puzzle” and build a case.

Olga Cronin of the Irish Council for Civil Liberties said the ongoing legal uncertainty stemmed from Ireland’s “failure to put in place a human rights-compliant system of oversight”.

She said that State agencies, including An Garda Síochána, had “excessive power” to monitor and retain private communications.

“Ireland has repeatedly been found in violation of European law on this and yet has failed to put in place adequate safeguards against this excessive surveillance.

“We’re calling on Government to bring forward legislation in this area as a matter of urgency.” 

Associate professor at UCD School of Law, TJ McIntyre, said: “The former chief justice found this to be an illegal system of mass surveillance in 2017 and the High Court did the same in 2018; by continuing to require telephone and broadband providers to spy on their customers regardless, the State has shown a fundamental disdain for the rule of law.”

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