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Dublin: 4°C Thursday 13 May 2021

Gardaí will soon have to ask a judge if they want to access your data

A report was commissioned last year after the accessing of journalists’ records.

Image: Shutterstock/blackzheep

JUSTICE MINISTER CHARLIE Flanagan said he does not have access to the figure of how many journalists have had their data intercepted under the 2011 Retention of Data Act.

Announcing today that he is to overhaul the law, he said the gardaí and any State agency will soon be required to go to court before accessing any citizen’s data.

The minister admitted there were “difficulties” with the 2011 legalisation, but would not go so far as stating that it was unconstitutional.

The announcement of the drafting of a new Bill coincided with the publication of a report by the former Chief Justice John Murray, who was appointed in January last year to carry out a review of the law after it emerged the Garda Síochána Ombudsman Commission (GSOC) had accessed records of two reporters following a complaint from a friend of the late Katy French.

It had been alleged information about the model’s case had been leaked to the media by gardaí.

There was concern about the ease with which GSOC and other agencies like An Garda Síochána and the Defence Forces could access this kind of information under current legislation.

The minister said that while bodies investigating crime need to have the appropriate powers available to them, that had to be balanced with legitimate journalistic activity carried out in the public interest.

“I think it is important we balance the safeguards and the protection of citizen’s rights against a robust legal framework to combat crime and international crime,” said Flanagan.

“Journalists are in a position of unique responsibility insofar as the conduct of their work are concerned and are entitled to the protection as envisaged under the report,” he added.

So what does the Chief Justice Murray review say?

It wasn’t in his remit to delve into the specific cases of accessing journalists records, but was charged to review the challenges posed of protecting journalist sources and balancing the data laws.

Chief Justice Murray states the 2011 Act is “universal and indiscriminate in reach and application” stating that it applies to all telephone and Internet communications made by every person within the State. He added that it “establishes a form of mass surveillance of virtually the entire population of the State”.

The judge said he is directly concerned with its impact on journalists, stating the Act makes no distinction between journalists and other communications users. This poses concerns.

Insofar as communications data may legitimately be retained for such purposes as the investigation or prosecution of serious crime, it follows that the provisions of the 2011 Act apply to everyone and anyone – including journalists – reasonably suspected of being involved in the commission of crime.
By the same token, the fundamental rights enjoyed by journalists in respect of the retention and disclosure of their communications data, both personal and professional, are the same as those enjoyed by citizens generally.

He said data pertaining to the time, date, location, destination and frequency of a journalist’s telephone calls may allow conclusions to be drawn about the recent pattern of his or her social and professional life, including his or her contacts, and thus provide a clear pathway to identifying his or her journalistic sources.

“For example, location data linking a journalist’s telephone calls with those of another caller in the vicinity of, say, Leinster House before or after a sensitive meeting in which that person was known to have been involved, might well be thought crucial in this regard,” he added.

What does the current law allow for?

The minister explained that the current law, as it stands, allows those in the security forces to make requests for data on a regular basis.

“This is by way of direct application [to service providers] on a regular basis. Under the new legislation the clarity that I will be providing is that there will be judicial oversight in the first instance and all and any access will only be granted on foot of a court order,” he said, adding:

For the first time now, when this legislation is enacted, we will have a framework where there is clarity, where there is a clear path towards the retention of data and indeed access that may be necessary from time to time to such data.

Justice Minister Charlie Flanagan Source: Leah Farrell

He clarified that he is not involved in the detail of the operation of the provisions of the data retention law. “That would be both inappropriate and unnecessary,” he said, adding:

It is for the agencies who have powers under the Act to use those powers in accordance with the strict provisions of the Act. They carry out those functions independently and that is as it should be. It would simply not be appropriate for me as minister to seek to involve myself in the conduct of criminal investigations.

Flanagan said the recommendations in Judge Murray’s report are “of huge importance” and many have been dealt with in the draft legislation.

However members of the media pointed out to the minster at a press conference this afternoon that there are no specific references to journalists in the new draft of legislation.

A spokesperson for the minister later clarified to reporters that amendments can be put forward at the Oireachtas Justice Committee (where this new Bill is heading to now).

What do the heads of the new Bill state?

It states that members of the gardaí can apply to a judge for an authorisation where there are “reasonable grounds for believing that the data” needed:

  • Relates to a person who is suspected of being or having been involved in the commission of a serious offence, and are necessary for the prevention, detection, investigation or prosecution of that offence or
  • While not directly related to a person who is suspected of being or having been involved in the commission of the offence, are nevertheless likely to assist in the prevention, detection, investigation or prosecution of that offence.
  • Relate to a person who is suspected of posing an existing and serious threat to the security of the State, and are necessary for the protection of the State against that threat; or
  • While not directly related to a person who is suspected of posing an existing and serious threat to the security of the State, are nevertheless likely to assist in protecting the State against the threat posed by that person.
  • Relates to serious and immediate risk to the health or safety of a person and that the data which are the subject of the application may assist efforts by the Garda Síochána to eliminate or mitigate that risk; where the data are required in the investigation of a missing person or where the data is required for the purpose of assisting the Coroner in the performance of his functions.
  • Relate to a person who is suspected of posing an existing and serious threat to the security of the State, and are necessary for the protection of the State against that threat

Flanagan said this new law will ensure that Ireland is at the “cutting edge” of combating our national crime, counterintelligence and counter terrorism, while also keeping up with evolution in relation to “advanced technological instruments” and “evolving EU law”.

What’s the difference between intercepting phone calls and accessing data? 

The minister explained that accessing retained communications data is not the same as intercepting telephones.

Communications data refers to subscriber (who owns the phone), traffic (what numbers are called) and location (where the phone is used) data. It does not include the content of phone calls. The interception of telephones is governed by the 1993 Interception Act and it explicitly restricts the giving of information about individual authorisations.

He said it is has long been the practice of successive Ministers for Justice not to reveal information about the detail or the numbers of interceptions for “sound and obvious reasons of security”.

I do not intend to depart from that practice. What I will say is that the most rigorous procedures apply in respect of granting authorisations to intercept communications and the process is scrutinised in detail by the designated judge who is empowered to do so under the Act.

Flanagan said he believes it “is important we find a balance towards the protection and safeguarding of citizens rights and of course of journalists in that regard and the protective rights that journalists rights that they are allowed conduct their work in a way that recognises the unique nature of their profession”.

The minister said he has written to the Justice Committee, adding that he want “early enactment” of this “modern legislation”.

What should people do if they suspect their communications have been intercepted?

The data retention and interception powers are overseen by independent, judicial arrangements that are set out in the law.

“Any individual – and that includes journalists – who thinks that their communications have been intercepted or that their communications data have been accessed can make a complaint to Judge John Hannan who is the Complaints Referee and who has full powers under the Acts to investigate complaints to ensure that the relevant laws have not been breached,” said the minister.

Related: Report on access to journalists’ phones in Katy French probe still not ready to be published>

Read: Sinn Féin wants to abolish the property tax at a cost of €440 million>

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