Major changes to espionage laws abroad sparks domestic review
The Official Secrets Act is seen as out of date, or, as one source put it, 'not sufficiently mature' and 'well behind other states'. File photo
Ireland’s new security watchdog is about to carry out a scoping review into Ireland’s laws on combatting espionage.
The primary law, the Official Secrets Act 1939, is more than 60 years old — long before developments in physical spying technologies, the internet, digital spying technologies, cyber espionage and foreign influence operations.
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Ireland’s recently appointed Independent Examiner of Security Legislation, George Birmingham, published his first annual report this week — the bulk of his work concentrating on three laws covering phone interception (dating from 1993), surveillance devices (2009) and communication data (2011 and 2022).
But he added that he was shortly to begin an initial examination of the espionage laws, after which he will decide if a full investigation is required.
“I mentioned in my report how the phone interception law is more than 30 years old, well the Official Secrets Act is 30 years further [in the past],” he told the in an interview.
In his report he said the phone law was “seriously out of date” as it was written before digital communications and encrypted communications and needed to be significantly updated.
The 1939 Official Secrets Act is primarily concerned with the offences of disclosing official or confidential information, including on military or policing matters, with offences carrying a maximum sentence on indictment of seven years.
The designation of who is a “foreign agent” has extended considerably, as documented in recent years across Europe, beyond people known or suspected to be members of foreign intelligence agencies to vulnerable individuals and criminals paid to carry out acts of criminal damage and sabotage on behalf of foreign agencies.
Foreign agencies are also doing the equivalent in the digital realm, hiring hackers or cyber criminals to conduct operations.
Potential targets of espionage have stretched beyond strict military or political secrets, to the economy, industry and academia — a major issue for Ireland not least because the country is a hub for major technology and pharmaceutical corporations and academic research.
There is an increasing recognition too of how critical national infrastructure, on land and at sea, is for Ireland and our connections to Europe, the Americas and beyond.
One of reasons sparking Mr Birmingham’s decision to conduct a scoping review was developments in other jurisdictions, namely the UK and Australia.
He said these reviews resulted in “major rewrites” of their laws, including in the areas of the economy and technology and created new offences.
“They were why it was a good reason to have a look here and see if a deeper dive [full review] was required,” he said.
Mr Birmingham, a former High Court judge, said he has not discussed the matter yet with the Garda Crime and Security Intelligence Service or the Irish Military Intelligence Service or relevant departments in justice, defence or foreign affairs.
“Obviously, even in this first stage of review I would look to talk with people active in the area for guidance,” he said. Enquiries made by the indicate that this is an area of concern for Irish security authorities.
The Official Secrets Act is seen as out of date, or, as one source put it, “not sufficiently mature” and “well behind other states”. Sources said the law has not kept pace with developments and the nature of threats from malign actors, such as Russia and China.
They say they have “few enough tools” available to them, including in relation to traditional spying tradecraft, with the only available option “throwing someone out of the country”.
This was done, in March 2022, after Russia’s full-scale invasion of Ukraine when four officials, political and military, attached to the embassy in Dublin were told to leave.
The scale of “proxies”, such as vulnerable, marginalised individuals and criminals being used by Russian intelligence services across Europe to carry out its work, is seen as another reason to modernise laws.
The acts documented in Europe include criminal damage, sabotage and acts designed to undermine countries' support for Ukraine, but also to sow divisions within societies and influence elections.
There is also the threat of industrial, political and cyber espionage by China and what is seen as its massive security service infrastructure.
Last December, the UK Parliament documented “repeated” warnings from British agencies of large-scale Chinese espionage targeting government, industry and academia.
In January this year, Mr Birmingham’s British equivalent, Jonathan Hall, a senior barrister, conducted a review of British legislation on state threats.
This included the National Security Act 2023, which Mr Hall said had “tooled up” the British State against foreign threats, by granting “major new powers”, “updating old spy laws” and creating “novel criminal offences”.
New offences include ‘foreign interference’, ‘sabotage’, ‘theft of trade secrets’ and ‘assisting a foreign intelligence service’.
On trade secrets, Mr Hall said there were “long-articulated fears about foreign powers, above all China, securing long-term economic advantage through extracting valuable trade secrets by subterfuge”.
He said new foreign intelligence services' offences applied both to “friendly and hostile services”, a reality for the EU too.
Mr Birmingham’s espionage review, and whatever recommendations that may flow from it, are likely to come after Ireland’s presidency of the EU, in the second half of the year, when domestic security, policing and cyber services will be on high alert to espionage and related hostile activities, targeting not necessarily Ireland, but Europe.
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