Calls made for gardaí and security services to have legal powers to access encrypted online communications

A High Court judge charged with examining how police and security services use laws to intercept, or ‘bug’, telephone calls has urged the Government to update legislation as it is over 30 years old.

A therapy service for children who have been sexually abused has welcomed judicial calls for gardaí and security services to have legal powers to access encrypted online communications.

Cari said that while it is a legally and technically complex issue, “vulnerable children need to be protected”.

A High Court judge charged with examining how police and security services use laws to intercept, or ‘bug’, telephone calls has urged the Government to update legislation as it is over 30 years old.

This means that online messaging services and encrypted communications are not included in the Interception of Postal Packets and Telecommunication Messages Act 1993 – and therefore gardaí and the Defence Forces have no legal power to access them.

In what is an annual report to the Taoiseach, Mr Justice Tony O’Connor said services such as Viber, WhatsApp, Facebook Messenger, Google Talk, Gmail, FaceTime and Teams are outside the reach of Irish agencies charged with protecting national security, investigating organised crime and tackling online child abuse imagery.

Mr Justice O’Connor said there was “widespread evidence” of criminal organisations using encrypted communications to avoid detection.

The Department of Justice told the Irish Examiner that its review of interception-related legislation — which started several years ago — was “ongoing”.

It said the intention was that the review would be completed by the end of the year and that after that proposals would be brought to Government.

Commenting, Emer O’Neill, chief executive officer of Cari, said: “While the accessing of encrypted online messaging services is a complex area, vulnerable children need to be protected. We need to tackle ongoing concern around children being groomed and exposed to sexual exploitation through online messaging platforms. Policies need to be reviewed and updated to protect children.” 

She added: “I welcome the reviewing of legislation by the Department of Justice and look forward to hearing the recommendations from the review.” 

But civil rights bodies across Europe, including in Ireland, are opposed to any such power, arguing that it would undermine secure communications for all and give repressive regimes even more power.

Digital rights expert, TJ McIntyre, associate professor at Sutherland School of Law, UCD, said: “Technical experts agree that weakening encryption puts everyone’s online safety at risk. There’s no such thing as a backdoor that only the ‘good guys’ can use.”

Last April, the Court of Justice of the European Union clarified the conditions for EU member states to request and transmit intercepted data from encrypted communication channels for use as evidence in criminal proceedings, in order to safeguard fundamental rights and enable continued investigations into criminal activities.

In June, the EU Innovation Hub for Internal Security said in a report that legal frameworks for lawful access to data and the use of encrypted communications in judicial proceedings was “paramount” for achieving the right balance between privacy and security.