Our Information Rights Project Manager, Elizabeth Farries, appeared before the Joint Oireachtas Committee on Justice and Equality last week with regard to the ICCL/DRI joint submission on the Retention of Data Bill. Watch her and our ED, Liam Herrick, here from 17.30 to 33.00.
Here is Elizabeth’s op-ed on the issue:
Irish human rights groups are advocating for better protections of citizen’s private information.
On Wednesday, the Oireachtas Justice Committee will continue to hear joint submissions on the Government’s planned data retention bill from the Irish Council for Civil Liberties (ICCL) and Digital Rights Ireland (DRI).
The bill is a response to over a decade of controversy regarding access by authorities to the personal communications data of Irish citizens.
The controversy arose in 2005 following a secretive Ministerial order requiring telecommunications companies to retain data related to private communications in Ireland. The DRI launched a challenge at the Irish High Court arguing that the Irish Data Regime was not compatible with European Union Law or the Constitution.
That challenge was referred by the Irish High Court to the Court of Justice of the European Union (CJEU), which held that unless the data retention scheme in Ireland met the general principles of European Law it was illegal. In a subsequent case at the CJEU, the European Directive informing the Irish scheme fell because it did not meet those principles articulated in the DRI case.
Following a complaint from an associate of the late model Katy French it was revealed that the Garda Síochána Ombudsman Commission had obtained phone records of two journalists. The Minister of Justice appointed Former Supreme Court Judge John Murray to conduct a review of the existing Irish Law of data retention.
The Murray Review found that Ireland has legislated a system of mass surveillance ‘of virtually the entire population’ of Ireland. A vast amount of our private communications information is retained without our knowledge or consent. It shows who we speak with, where we are going, and what we are interested in.
It is therefore not only journalistic sources that are threatened. The system of collecting private communications data from all people in Ireland is not in compliance with European Law.
Dr. Eoin O’Dell, Associate Professor of Law at Trinity College Dublin, says that across the European Union, other member states have taken a more protective stance towards private communications data than Ireland. ‘The Irish government distinguishes between communications data and content; however, data alone can provide a very clear picture of your location and activities’.
Last week arguments were made in at the Joint Committee that the proposed bill fails to address constitutional points at a number of levels including those raised in the Murray Review. It doesn’t provide an explicit exemption for journalists, compensation to persons whose rights were violated, or clear oversight through layers of judicial intervention.
Lack of adequate remedy to these ongoing deficits in law were argued as a clear risk to the state. For example, prosecution that would otherwise be successful in securing convictions against criminal groups through use of this data could face potential challenges because the data would not be useable on the grounds that it was improperly collected.
TJ McIntyre, Chair of Digital Rights Ireland, explained to the committee how government has failed to implement measures into the new bill to correct these deficits. Dr. McIntyre noted that the bill does not reform the structure for oversight of data retention. It instead continues to place too much oversight reliance on a designated judge who acts on a part-time basis, with very limited transparency, and without the benefit of any technical or other expert support.
We at the DRI and the ICCL therefore recommend that the institutional oversight for this and other forms of surveillance be revisited and make recommendations for reform. We recommend that designated judge for oversight be replaced with by a unified independent supervisory authority, with parliamentary accountability, to be chaired by a judge with technical expertise and resources.
We also argue that the public should be clearly informed as to findings, in detailed and structured reports.
Our digital privacy rights warrant the same amount of process and care as our other rights.
On Wednesday, we at the ICCL will continue to give submissions on the need for independent and effective supervision of data retention in Ireland. To ensure the privacy rights of people living in Ireland, and their freedom of expression, it’s crucial that we have strong protections in our communication data laws.