'Outdated' law for intercepting phone calls and texts poses security risk, warns judge
Mr Justice Charles Meenan claimed the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 essentially limited any interception to texts and voice calls
Legislation which allows the State’s security forces to intercept telecommunication messages is “seriously out of date,” and posing a risk to the security of the State, according to a High Court judge.
Mr Justice Charles Meenan claimed the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 essentially limited any interception to texts and voice calls.
The judge said updated legislation to allow for State bodies to access encrypted forms of telecommunications was “urgently required and long overdue.”
In his latest annual report as the designated judge appointed to oversee the operation of the legislation, Mr Justice Meenan said security forces were relying on definitions contained in legislation that is 38 years old.
He advised the Taoiseach, Micheál Martin, that the types of communications referred to in the 1993 legislation would become obsolete.
“In the absence of up-to-date legislation, criminal investigation and the security of the State will inevitably be compromised,” Mr Justice Meenan said.
He added: “The serious consequences of this are all too obvious.”
The current legislation permits gardaí and the Defence Forces as well as other State agencies including Revenue, GSOC and the Competition and Consumer Protection Commission to intercept telecommunications calls and texts as well as post.
“Those interceptions still have use, it is clearly necessary that, in order to deal with crime and to protect the security of the State, provision is made for there to be access to the transfer of data in encrypted form,” the judge observed.
However, he said any new legislation would also have to provide the necessary protections and safeguards for individuals whose communications might be intercepted.
Mr Justice Meenan pointed out there was a separate legal issue regarding the legality of the disclosure of data by a service provider which was designed to prevent or detect crime under the Communications (Retention of Data) Act 2011.
It relates to the legal challenge by Graham Dwyer against the use of mobile phone data to secure his conviction for the murder of 36-year-old childcare workers, Elaine O’Hara in August 2012.
The issue was referred by the Supreme Court in Dublin to the Court of Justice of the EU which is expected to issue a ruling later this year.
Lawyers for four men accused of the kidnapping and torture of businessman, Kevin Lunney, have used the same argument about the unlawful gathering of phone evidence in an ongoing trial at the Special Criminal Court.
Mr Justice Meenan said the provision about the disclosure of data was not currently being relied on “to the clear and obvious detriment of criminal investigation.”
He remarked that the provisions for telecommunications to be intercepted were equally necessary for when the security of the State was under threat as for the investigation and prevention of crime.
“What may not be fully appreciated is the nature and extent of current dangers and threats to the security of the State,” the judge said.
He continued: “These dangers and threats come from individuals and groups organised or based both within the State and outside it. The seriousness and potential damage that can result from these must not be underestimated.”
Mr Justice Meenan said he was satisfied from an analysis of a random sample of files held by gardaí and the Defence Forces containing applications to intercept post and telephone communications that officials were exercising their powers under the legislation proportionally and responsibly.
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