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State surveillance: How Gardaí and others can secretly monitor you

Part One of TheJournal.ie’s two-part series on state surveillance in Ireland.

Source: AP/Press Association Images

IN THIS TWO-part series, we go inside the murky world of surveillance in Ireland, and expose the alarming gap between what agents of the state can do to you, and what you are allowed to know, and do, about it.

In Part One, we examine the extraordinary powers given to Gardaí, the Defence Forces, and Revenue, and what we know about how they use those powers.

In the second part, we look at what the Irish government is refusing to reveal about surveillance, the disastrous consequences when state monitoring goes unchecked, and ask – how do we compare to other countries?

GARDAI CAN BREAK into your home, implant a video camera or recording device in your living room, and leave it there for three months.

And they can break in again to remove the device, without you ever knowing they were there.

Revenue can put a tracking device on your vehicle, and monitor your movements, for four months.

The Defence Forces can intercept your emails, and tap your phone.

It’s all governed by law, and intended to combat serious crime and protect the security of the state.

But despite the far-reaching nature of these powers, we know – and are allowed to know – very little about how they’re actually used.

Several government departments and state agencies have refused a series of Freedom of Information requests by TheJournal.ie, which asked for very basic information about the use of covert surveillance powers.

What can they do?

Mobile phone handsets warning Source: PA Wire/Press Association Images

Surveillance in Ireland is basically governed by two laws: the 1993 Interception of Postal Packets and Telecommunications Messages Act, and the 2009 Criminal Justice (Surveillance) Act.

Under the 1993 Act:

  • Gardaí or the Defence Forces can tap phones and listen to phone calls, open and read letters before they arrive to their recipient, and (potentially) read emails
  • After the Garda Commissioner or Chief of Staff of the Defence Forces applies for permission from the Justice Minister
  • For up to three months (extendable)
  • If they can show the surveillance will yield evidence they couldn’t otherwise get
  • As part of an investigation into serious crime, to prevent a serious crime, or to protect the security of the State

Under the 2009 Act:

  • Gardaí, the Defence Forces and Revenue can secretly record you with audio and video devices
  • For three months
  • They can break into your home to implant a device, and again to remove it
  • If they can, they have to get permission from a District Court judge, but if it’s an emergency, a “Superior Officer” in each agency decides, and they get 72 hours to engage in the surveillance
  • Gardaí, the Defence Forces and Revenue can secretly put a tracking device on your vehicle, and follow your movements
  • For four months
  • Without permission from a District Court judge, but with the approval of a “Superior Officer” within each agency.

Interestingly, this year’s Garda Síochána (Amendment) Act also gives the Garda Síochána Ombudsman Commission (GSOC) powers of surveillance over Garda members it is investigating.

So Gardaí themselves can now be secretly bugged, wiretapped, recorded and have their internet use monitored, under the 1993 and 2009 Acts.

What can you do about it?

Internet surveillance tribunal Source: Dominic Lipinski

You’re unlikely to ever know if you’ve been the subject of covert surveillance, if it’s done properly, or unless it’s disclosed in a trial.

However, if you have a suspicion that your letters have been opened, emails read, or phone tapped, you can take a case.

The “Complaints Referee”, appointed by the Taoiseach, (currently High Court Justice Carroll Moran), can receive reports from the public, investigate whether there was surveillance, if it was properly authorised, and if it involved any legal violations.

They can then decide to quash an authorisation from the Justice Minister (retroactively declare it illegitimate), order the destruction of any recordings from the surveillance, and even order financial compensation.

However, the investigations and decisions of the Complaints Referee are not published.

TheJournal.ie filed a Freedom of Information request with the Taoiseach’s Department (to whom the Complaints Referee reports) asking how many complaints – upheld or rejected – have been made since the Act came into force.

We were told that no such records were found.

So the Irish public is missing two important pieces of information: how often state agencies violate surveillance laws, and how likely are you to win a case if you’re thinking about bringing one.

What DO we know?

1993reports Source: PA/Oireachtas.ie

There is some degree of oversight when it comes to Ireland’s state surveillance regime.

Both laws require a designated judge give an annual report to the Taoiseach and the Oireachtas on how the Gardaí, Defence Forces and Revenue are using their covert surveillance powers.

The level of scrutiny and detail, however, depends on the vigour and energy of the judge making the report.

And both laws contain provisions that allow the Taoiseach to remove sensitive sections from the version of the report that he provides to legislators.

Law lecturer and chairman of Digital Rights Ireland, TJ McIntyre has been keeping a close eye on state surveillance for many years, and offers a mixed review of transparency surrounding the regime.

“You’re very much dependant on the happenstance of what the individual judge chooses to do and how they interpret their role,” he told TheJournal.ie.

In the case of the 2009 Act, McIntyre says the late Justice Kevin Feeney “took his job very seriously”, and produced reports that showed a “commitment to transparency.”

But designated judges for the 1993 Act – who are the only systematic and public overseers of the legal ability to wiretap phones – produce “derisory, identical, one-page reports, year in, year out,” he adds.

From 1994 until 2007, three separate designated judges produced identical reports on wiretapping, including only a one-sentence formula that achieves a minimal compliance with their remit under Section 8 of the 1993 Act:

I have kept the operation of the Act under review and I am satisfied that its provisions are being complied with.

Reports on the 2009 Act have been considerably more detailed, but still lack basic statistics.

Nonetheless, TheJournal.ie has been able to glean some interesting facts from those annual reviews.

We know that:

  • The overwhelming majority of surveillance involves tracking devices, which doesn’t require authorisation from a judge, and takes very little manpower
  • When a Garda member asks a Superior Officer to apply for a judge’s permission to perform surveillance, the Superior Officer almost always agrees
  • Judges almost always grant that authorisation
  • In one year (2009-2010) the number of surveillance requests approved internally by a senior Garda (“emergency” authorisations) was double the number approved by a judge.
  • Revenue agents almost always use the Act to place tracking devices on vehicles, as part of investigations into smuggling.
  • The Defence Forces rarely seek authorisation to bug, wiretap, and so on, under the 2009 Act, and didn’t do it once in 2012-2013.

We also know that the Gardaí keep a scrupulous record of every time surveillance is authorised, either by a District Court judge, or internally, by a senior Garda.

In his report on the 2009 Act for 2012-2013, Justice Michael Peart noted how helpful it was that Garda Headquarters kept a database and spreadsheet that were “easy to consult and review.”

TheJournal.ie asked the Gardaí for figures drawn from that permanent record, but they refused.

Furthermore, we know that Gardaí don’t consider other kinds of surveillance to be governed by the 2009 Act.

In his report for 2012-2013, Justice Peart mentioned that then Commissioner Martin Callinan, in an internal policy document, had advised that surveillance that doesn’t involve the use of devices, falls outside the legislation.

Which begs the question – what are the procedures, protocols and safeguards against abuse, which Gardaí have in place when it comes to following vehicles and persons, or watching movements in and out of homes?

TheJournal.ie put these questions, in detail, to An Garda Síochána, but they declined to comment.

In Part Two, we look at what Gardaí and the Irish government refuse to reveal about surveillance, the disastrous consequences of unchecked monitoring, and see how Ireland compares to the countries that brought you the NSA and GCHQ.

Documents

1993 Interception of Postal Packets and Telecommunications (Messages) Act

2009 Criminal Justice (Surveillance) Act

2011 Communications (Retention of Data) Act

Designated judges’ reports on the 1993 Act:

1994-2004
2006-2014

Designated judges’ reports on the 2009 Act, 2010-2014

Read: Government silent as Snowden docs reveal access to Ireland’s internet cables>

Read: Fitzgerald – There’s been a crisis of confidence about the gardaí, and that has to change>

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About the author:

Dan MacGuill

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