Court approval ‘should be needed’ to access journalists’ phone data

Access to journalists' phone or internet records by State agencies including for the purposes of identifying their sources, should only be allowed with the prior authorisation of the High Court or an independent administrative or judicial body, an Oireachtas committee has recommended.

In a report on proposed new data retention legislation, the Oireachtas Committee on Justice and Equality has also recommended special provisions be inserted to protect journalists and their sources and that judicial oversight of access to people’s records be strengthened.

It also recommends that all people whose phone or internet records are illegally accessed by State agencies, including An Garda Síochána, the Revenue Commissioners, the Defence Forces or the Competition and Consumer Protection Commission, should continue to have the right to compensation.

Submissions

Last November, the committee heard submissions from civil rights groups on the general scheme of the Communications (Retention of Data) Bill 2017. It was tabled by the Government following a review by former chief justice John Murray of the current law on State access to people’s phone and internet records.

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Mr Justice Murray found that current data retention legislation of 2011 amounted to mass surveillance of the entire population of the State and that it was in breach of European law.

He made a number of recommendations, including that the oversight regime for access to retained communications data held by service providers be strengthened.

Mr Murray also said that access to a journalist’s retained communications data for any purpose should in principle be permitted only when the journalist was the object of investigation for the suspected commission of a serious criminal offence or for unlawful activity posing a serious threat to State security.

Minister for Justice Charlie Flanagan published the heads of the Bill on October 3rd, on the same day as he published the Murray report.

The Irish Council for Civil Liberties, Digital Rights Ireland and the National Union of Journalists told the committee their view was that the new proposals, as drafted, were likely to be in breach of European law and would not adequately protect citizens or journalists and their sources from inappropriate access to their data.

They also expressed concern about inadequate judicial oversight of the current data retention regime.

The groups also noted a provision in the 2011 legislation that an independent complaints referee would have the power to order that compensation be paid to any person whose data was wrongfully disclosed had been “quietly removed” in the proposed new Bill. They recommended that this be reinstated.

In its final report on the pre-legislative scrutiny, the committee said it was concerned that the proposed legislation be fully compliant with EU law and that it adequately reflect European Convention on Human Rights norms.

It recommended that particular provision be made in the proposed Bill for journalists and their sources and that these should reflect the recommendations of the report by Mr Justice Murray.

Among 10 recommendations, the committee also says those whose phone or internet records are disclosed should be notified of the fact once doing so is unlikely to prejudice an investigation.

The committee also recommends, in line with the Murray review, that those whose rights had been affected by access to their retained data should have an appropriate judicial remedy expressly provided for in legislation.

The Murray review was sought by then minister for justice Frances Fitzgerald in January 2016 in response to allegations the Garda Síochána Ombudsman Commission (Gsoc) had wrongfully intercepted the phone records of three journalists.