Irish Examiner View: Data retention laws must be updated

Current law amounts to mass surveillance of the entire population of the State without our consent

As far back as 2001 concerns were expressed that Irish mobile phone firms were storing data for up to six years while claiming it was only six months. File picture: iStock

Ever since George Orwell penned his dystopian novel, 1984, his fictional character of Big Brother has served as a stark warning of the dangers of totalitarianism and of the importance of ensuring civil rights in a free society. Any encroachment on those rights in modern times, such as the retention of mobile phone data, has to be weighed against the desire to protect citizens against serious crime.

Various Irish governments have sought to enhance law enforcement powers in this regard but have failed to balance those powers by protecting the rights of citizens, as guaranteed under the European Charter of Fundamental Rights. Indeed, right up to the present day, successive administrations have exhibited a cavalier approach to data retention.

It is little wonder, therefore, that the European Court of Justice is set to rule against Ireland in a case referred to it by the Supreme Court after mobile phone records were used to convict murderer Graham Dwyer. There is little chance that Dwyer will have his conviction overturned but the expected ruling could have consequences for ongoing criminal cases that rely, even partly, on mobile phone records.

It is not as if our Government has not been warned about this. As far back as 2001, concerns were expressed by the Data Protection Commissioner’s office and the Irish Council for Civil Liberties that Irish mobile phone firms were storing data for up to six years while claiming it was only six months.

In an attempt to put the situation on a legal footing, in 2005 the then justice minister, Michael McDowell, introduced one of the most stringent data retention laws of any democracy. It was designed to combat terrorism and allowed for phone data to be retained for up to three years. After warnings of over-reach from the EU, that legislation was updated in 2011, to include the EU 2006 Data Retention Directive. 

This directive was introduced following a series of significant terrorist attacks across Europe and it obliged member states to have a data retention regime in place.

The directive was subject to legal challenges, among them proceedings by Digital Rights Ireland, and was struck down by the ECJ in 2014 as invalid, thereby creating a sustained period of legal uncertainty about the validity of national laws that enacted it. An early draft of a new Bill to replace the 2011 legislation was made in 2017 but it is still at the preparatory stage. 

This followed a report the same year by the former chief justice John Murray, who found the current law amounts to mass surveillance of the entire population of the State, involving the retention and storage of historic data pertaining to all electronic communication. This includes communication via fixed-line and mobile telephone, internet communication, and text messages and is being done without the consent of those affected.

In relation to journalists, the judge said data pertaining to the time, date, location, destination, and frequency of a journalist’s telephone calls is available and can identify sources.

In other words, a system of national surveillance. Not quite Big Brother, but close.