Net Results:In a potentially far-reaching legal challenge, privacy rights watchdog group Digital Rights Ireland last July began a High Court challenge to the State's data retention law, which allows the Government and Garda Síochána to collect, store and access mobile and fixed-line phone data, writes Karlin Lillington.
Letters sent to the Minister for Justice, Equality and Law Reform, the Minister for Communications, the Marine and Natural Resources, and the Garda Commissioner asked for undertakings that data retention legislation will cease to be implemented and enforced and requests for access to data will cease.
Digital Rights Ireland (DRI, at www.digitalrights.ie) gave the State seven days to comply, after which it said it would take legal proceedings.
At last, after recently being formally challenged by DRI to file a response, the State has said it will offer its defence by March 26th.
But the case is unlikely to linger in the Irish courts. The issue is so important to civil and human rights groups, and was so controversial as it passed through the European Parliament, and is so central to the kind of surveillance culture many states have begun to impose on their citizens using vague references to terrorism as an excuse, that a legal challenge in Europe was always expected.
Because of DRI's case, it looks like that challenge will, appropriately, come out of Ireland. We are a state with one of the longest retention periods in the world and that also secretly imposed retention, on questionable constitutional grounds, through a hidden Cabinet direction.
We have the Government that was threatened half a dozen times with a High Court challenge by the Data Protection Commissioner on behalf of the Irish people's constitutional and privacy rights, that brought data retention in formally through the back door of a tiny amendment in a Bill when few were in the Dáil to notice, and then championed this "cause" for the rest of Europe.
Under the State's data retention legislation, details - but not the content - of every phone, mobile and fax call is stored for three years. That is for everyone, including children.
This information includes a daily record of the physical location of mobile phone users and data on every number called, the time of the call and its duration. An EU directive will expand the range of information collected to include e-mail and internet usage data.
Gardaí can access such data for any crime, including trivial misdemeanours. Although Minister for Justice Michael McDowell had promised that access to call data would be tightly controlled, access restrictions were never imposed, a situation repeatedly criticised by Data Protection Commissioner Billy Hawkes.
Recently, at UCC's student Law Society Law Conference, Deputy Data Protection Commissioner Gary Davis said that gardaí were accessing telecommunications data at a rate of 10,000 requests a year.
DRI - along with many international civil rights groups - say that such monitoring is a breach of Irish citizens' rights to privacy, as set out in the Constitution and the European Convention on Human Rights, and as endorsed by the Irish courts, the European Court of Justice and the European Court of Human Rights.
"This is a complete reversal of the assumption that people are innocent until proven guilty. This legislation is the first time we have seen any state impose mass surveillance on its population on the basis that at some point in the future, someone might commit a crime," said TJ McIntyre, University College Dublin law lecturer and chairman of DRI.
He also has noted that while call data was used to secure convictions in the Omagh bombing and Veronica Guerin cases, call data was gathered within the six-month window previously mandated by European data protection laws. To date, say DRI, no evidence has ever been presented that storing data for six times longer would deter terrorism or crime.
The Irish Council for Civil Liberties has stated that under Ireland's data retention laws, every citizen carrying a mobile phone is in essence carrying a mobile tracking device that reports on their whereabouts constantly during the day and stores such information for three years.
DRI has said that it expects the High Court to refer the case on to Europe, and will request that this be done, given that a European directive is now in part the basis for the law and that European human rights law is the basis for their challenge.
If taken to Europe on human rights grounds, any decision will have a Europe-wide effect - ideally, turning the issue back to individual states democratically to determine storage periods while also creating a strong precedent against the creation of national data retention schemes.
Thus Ireland's challenge will be closely watched by other states and international civil and human rights groups.
The Data Protection Commissioner's office also stated at the UCC law conference that it welcomed DRI's action against the Government on data retention, noting that it would bring clarity to an important issue.
And this week, Labour's spokesman on justice, Brendan Howlin TD, called for a review of the operation of powers given to the gardaí to access personal telephone records.
While this is welcome, it has taken a long, long time for politicians to finally scrutinise this appalling piece of legislation. A tiny handful challenged it in the Dáil, and silence greeted its passage two years ago. Last summer, the Data Protection Commissioner's office revealed that requests for records were coming in by the thousands from gardaí, expressed concern at the lack of oversight in the process, and still, politicians said nothing. It has taken a reiteration of the same information - that some 10,000 requests are made annually - finally to galvanise some debate. Let's hope some more voices join in as the court case moves forward.
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