Thursday, 14 February 2008
Seanad Eireann Debate
Senator Fiona O’Malley: I welcome the Minister of State to the House. I am glad to have the opportunity to discuss the data retention directive. I read in a newspaper recently that it is already three months overdue to be enacted. While the Department of Justice, Equality and Law Reform has given an indication that it will happen in the new future it was pointed out in the newspaper article that there has not been a proper debate about it. A debate is necessary because the directive provides for strong powers. One wonders whether it is necessary.
The primary objective of data retention is to be able to hold on to and analyse traffic. It covers mass surveillance of the population if one wants to take it to its limits and it certainly has the capacity to do that. That we seem to be signing away agreement to do this worries me. What it means is that we will allow mobile phone traffic or correspondence on computers and websites that is delivered to be held for a period of three years. The argument often given is that it is a prevention measure against terrorism. That is one reason people do not like to alter it. If the State is under threat, anything that can be done to help bring people to justice should be done. It is hard for people to argue against it.
Let us look at the most recent acts of terrorism, particularly the Madrid bombings. Before this directive was introduced the culprits there were brought to justice on the basis of existing levels of data retention. I consider as excessive what is proposed in this directive.
I have raised this matter because there has been no debate on it. That is what worries me. I may learn from the Minister of State that it has been signed. I wanted to raise it because it is important the Houses of the Oireachtas get an opportunity to approve it as it constitutes an infringement of civil liberties and I am not sure it is in consort with the European Convention on Human Rights. On the one hand, how can we grant powers, albeit for laudable aims, when on the other hand, they are interfering with other more fundamental powers?
I was also interested to listen to a report this morning on a terrorist who was killed in Damascus yesterday. He had been on the most wanted list for many years. It was interesting to hear a private detective who had been pursuing him for 20 years speak about his practices. He never kept the same mobile phone for longer than a day. He kept changing codes. The levels to which he went to circumvent any kind of traceability were extraordinary. The devious mind will always find a way round conventions or monitoring systems that are in place. If one is a subversive one will look at ways of getting around controls or normal procedures.
That is the problem with this directive. It is not the guilty who will have their records kept indefinitely. The idea of the State watching over one is what worries me. We know that drug dealers buy credit and pay as you go phones, ones that are not and cannot be recorded. Legislation has been proposed providing that people who purchase such goods will have to be registered. Perhaps this is where it has got bogged down. It will be very difficult to register that.
My purpose today is to highlight that we should have the debate. If I am to learn it has not been transposed, I would hope we might have a chance to have greater debate in this regard because it is an important issue. If the State deems it is necessary, so be it, but the opportunity to discuss the matter is one I would welcome. I look forward to the Minister’s response.
Deputy Pat The Cope Gallagher: I thank Senator Fiona O’Malley for raising the issue of data retention on the Adjournment today. It gives me an opportunity, on behalf of the Minister for Justice, Equality and Law Reform, to outline the position, however briefly, with regard to data retention.
Traditionally, telephony operators retained data for their own billing and marketing purposes for a considerable period — often for up to six years — in line with the Statute of Limitations. The information was made available to the Garda on request on an informal basis. Some shape was put on that system in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, under which requests for data had to be made through a Garda chief superintendent or a colonel in the Permanent Defence Force. This system continued until the EU Telecommunications Directive 2002/58/EC which, as interpreted, allowed data to be retained for only up to six months. This would have caused problems for law enforcement and State security and, accordingly, the then Minister for Public Enterprise, using her powers under the Postal and Telecommunications Services Act 1983, issued directions to the main telephony operators to retain data for three years.
That was intended as a temporary measure until primary legislation was ready. The preparation of the legislation was delayed by negotiations on the EU framework decision on data retention. However, matters came to a head in January 2005 when the then Data Retention Commissioner issued notices to the main telephony operators to retain data for no longer than six months. To retain the integrity of a system that is crucial in the fight against crime, including terrorist crime, emergency legislation had to be prepared placing the temporary provisions on a full statutory basis. This was done in this House by way of amendments to the Criminal Justice (Terrorist Offences) Act 2005. I emphasise that the importance and effectiveness of data information in protecting our people against the activities of criminals, including terrorists, cannot be overestimated.
The negotiations on the framework decision petered out and it was decided instead to transform the instrument from a Third Pillar framework decision to a First Pillar directive. Agreement was reached on the directive following intense negotiations but Ireland voted against it on a matter of principle — we had no significant problem with the content. The First Pillar is designed to regulate the internal market. At present, we have a challenge to the legal base for the directive before the European Court of Justice but that does not absolve us from transposing the directive.
Transposition will take place as soon as possible after all consultations have been completed. The directive was due for transposition last September but, because of our existing legislation on data retention, a method had to be found whereby the same scheme and safeguards would apply to both telephony and Internet data. It is the normal practice to transpose directives of this type by means of a statutory instrument. Transposition means that we will have a similar system of data retention to all of the other member states of the European Union. This will allow member states to co-operate more fully in responding to crime, including the transnational criminal gangs that traffic human beings and drugs, and the threats posed by terrorists, both from within and outside the European Union.
Finally, the directive is a joint collaboration between the European Parliament and the Council. Recital 9 makes it clear that it complies with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms under which everyone has the right to respect for his or her private life. I reject that such a system is a breach of freedom. It is relevant only to information such as when and the number to which a call was made and the location of a call. It does not require content of messages to be retained. We have little room for flexibility in transposing the directive, but where we have some element of flexibility, such as the periods for which data must be retained, final decisions have not yet been made.
Senator Fiona O’Malley: I thank the Minister of State for that comprehensive reply. He said transposition will take place as soon as possible after consultations have been completed. He might ask the relevant Minister on my behalf where those consultations are taking place. As a Member of the other House, I ask the Minister of State to raise this issue there because it is in the interests of the Irish people. While he suggested that this directive complies with the European Convention for the Protection of Human Rights and Fundamental Freedoms, that is not what I have read. It would be a good opportunity for us to discuss it. Nobody wants to undermine the ability of the State to protect us against subversion — I would not want to do so. However, personal and individual freedoms are also important.
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