The Russian invasion of Ukraine has “considerably increased” the level of danger to Ireland, a judge supervising our spying laws has said.
Mr Justice Charles Meenan said there were “very serious threats” to the State and that these threats had “increased” in the last year.
He repeated calls for up-to-date legislation to allow State agencies to access encrypted communications to combat organised crime and to protect the State.
He warned that failure to modernise the laws will "inevitably have serious consequences".
Mr Justice Meenan is the designated, or oversight, judge, for two key spy powers — interception of phone calls and post and access to traffic data on private communications — and is tasked with ensuring that the legal provisions are complied with.
These powers are detailed in the Interception of Postal Packets and Telecommunication Messages (Regulation) Act 1993 and the Communications (Retention of Data) Act 2011 respectively.
In his annual report, covering the year ending June 27 this year, the judge said he visited Garda HQ in Phoenix Park and the Defence Forces’ McKee Barracks on June 24. He also visited the offices of the Department of Justice.
He said, Revenue, and the Competition and Consumer Protection Commission all said they had not availed of the powers in the last year.
In his report to the Taoiseach, Mr Justice Meenan said it was “essential” there were legal provisions for telecommunications to be intercepted for both the prevention and investigation of crime and protecting the security of the State.
He said the dangers to the State come from both within and without, before adding:
He did not outline the basis of this assessment, but points out that he was given “all files” regarding interception applications during his visits and chose files randomly for “close examination”.
He pointed out that all the documentation was in order.
“There are very serious threats to the security of the State from persons or groups organised within and outside the State,” he said. “These threats have increased in the past year.”
The judge said the 1993 provisions were “seriously out of date” as the definition of ‘telecommunication message’ was based on meaning given in legislation dated 1983, close to 40 years old.
“Though these interceptions still have use, it is necessary, in order to deal with crime and protect the security of the State, that provision is made by statute for there to be access to the transfer of data in encrypted form,” he said.
A number of investigations by European police agencies, and statements by senior garda officers, have shown the extent to which organised crime gangs use encrypted phones to order shootings, drug trafficking and firearms shipments.
The Kinahan crime cartel has long used encrypted phones, including in planned hits, as revealed in prosecutions in the courts.
Civil rights groups have argued tapping of encrypted communications breachedrights to privacy and question the technical feasibility of intercepting encrypted communications.
In addition, they point out that warrants to intercept are granted by the justice minister and not by an independent authority.
In his report, Mr Justice Meenan said: “Updated legislation to provide for such is urgently required and long overdue. A failure to enact such legislation will inevitably had serious consequences for the security of the State and its ability to detect and prevent crime.”
The judge also said the legal impasse around the retention and accessing of communication data under the 2011 “will have to be addressed” in new legislation.
The Department of Justice is currently rushing through a bill on retention, following the European Court of Justice ruling in the Graham Dwyer case, subsequently endorsed by the Supreme Court, that general retention and accessing of data for the investigation of serious crime breached EU laws.
Mr Justice Meenan said that the legal issues on both areas “should be addressed as a matter of urgency”.
He said there was a reduction in interception applications in the last year, but said he was satisfied by the explanation of this.
In line with all previous reports, all of which are a few pages long, the four-page report does not provide any statistical information on applications and warrants or any breakdown by agency or nature of threat.
The Government is due to set up a new independent examiner of security legislation as part of its massive reform on An Garda Síochána. The Department of Justice published a policy paper on proposed amendments to the 1993 act in December 2016, but the amendments have not yet occurred.
A spokesperson said "Work is progressing to develop proposals to provide for a modern legislative framework for interception having regard to developments in technology since the 1993 Act came into force."
Meanwhile, the Oireachtas Justice Committee has published recommendations based on an unscheduled pre-legislative scrutiny on Thursday of the General Scheme of the Communications (Retention of Data) Amendment Bill 2022, published on 21 June.
Committee chair, Fine Fáil TDsaid the committee was of the view the draft bill should have been brought before it “at a much earlier stage”.
The committee heard on Thursday from legal and digital rights experts, as well as senior gardaí and department officials and the Data Protection Commission.
The committee made a number of recommendations to the department and said wider consultation was needed, including with telecom companies.