McEntee to seek private hearing of court application under law dealing with Dwyer data challenge, digital rights group claims

The Minister for Justice will ask the High Court on Monday to hear an application in camera concerning a controversial new law rushed in to deal with the fallout from a legal challenge by convicted murderer Graham Dwyer, Digital Rights Ireland has claimed.

Digital Rights Ireland wrote to the Minister on Friday asking her to confirm she intended to apply on Monday for an order requiring service providers to retain certain data under the 2011 Act, as amended by the 2022 Act.

Asked by The Irish Times on Friday about the claim made by Dr TJ McIntyre, chairman of Digital Rights Ireland (DRI), a Department of Justice spokesman said it had no comment to make.

Dr McIntyre made the claim before a specialist lawyers’ conference, organised by the Media Internet and Data Protection Bar Association, where he was part of a panel addressing issues under the General Data Protection Regulation.

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The State last year rushed in emergency legislation, the Communications Retention of Data (Amendment) Act 2022, he said. That was adopted, contrary to the GDPR and a European directive, without any prior consultation and without a data-protection impact assessment to avoid, in DRI’s view, “any proper democratic scrutiny”, he said.

The State was required to notify the draft measures to the European Commission but failed to do so and instead decided to notify the completed Act once it was signed into law by the President, he said.

[ New law to ‘fix’ impact of Graham Dwyer’s phone-data case ‘could face legal challenge’ ]

[ Graham Dwyer’s legal battle over murder conviction: What could happen next? ]

The commission has engaged in correspondence with the department about this from January last and the State’s position is that it is still a draft Act, he outlined.

“As of Monday coming, the Minister for Justice is going to make an application in the High Court seeking an order under the Act which will require the retention of mobile phone data on everyone, you, me, the entire citizenry, for an extended period of time, including our whereabouts, who we called, texted and so on.”

“To do that, the application will be ex parte, in camera, none of us will have visibility into the arguments before the High Court judge who will hear the application, none of us know who the High Court judge is.”

This shows the State is “still being dragged kicking and screaming into basic compliance” with data protection and privacy principles, he said. The 2022 Act does not, for example, have protection for journalists’ sources, he added.

The 2022 Act is intended as an interim response to Graham Dwyer’s successful challenge to provisions of a 2011 Act under which certain mobile phone data was retained and accessed and used in his prosecution for the murder in 2012 of childcare worker Elaine O’Hara.

On June 7th last, the Minister for Justice, Helen McEntee, signed an order to bring the Act into effect.

The commencement of the Act “will bring legal certainty for communications service providers and State agencies on what obligations apply to the retention of communications data which is vital for law enforcement and national security purposes”, she said.

Digital Rights Ireland wrote to the Minister on Friday asking her to confirm she intended to apply on Monday for an order requiring service providers to retain certain data under the 2011 Act, as amended by the 2022 Act.

The group asked the Minister to bring various matters to the court’s attention, including whether she had carried out a Data Protection Impact Assessment of the measure and engaged with the Data Protection Commissioner about it, as required under the GDPR.

[ Digital rights group wants court to order regulator to fully investigate claims against Meta ]

[ Supreme Court urged to reject phone data used to secure men’s convictions ]

It asked the Minister, “in accordance with your duty of candour” to the court, and the commitment in the State Litigation Principles – published earlier this week – “to assist the court by providing full and accurate explanations of all relevant matters of which the court requires to be aware”, to bring its correspondence to the court’s attention.

The 2022 Act requires general and indiscriminate retention of phone-caller, traffic, location and internet source data for a default period of one year. It provides for gardaí and other bodies to apply to a judge for preservation “quick freeze” orders and production orders regarding mobile phone traffic and location data for combating serious crime, national security grounds, protecting life and safety of persons or locating missing persons. The Minister may prescribe a different period of up to two years on a similar basis.

The Act provides the Minister may apply to the High Court, on the basis of a serious and genuine, present or foreseeable threat to national security, for an order requiring the general and indiscriminate retention of caller, traffic and location metadata for 12 months.

The Act was introduced in response to a judgment of the Court of Justice of the EU (CJEU) in favour of Dwyer’s data challenge. The CJEU held EU law did not support indiscriminate retention of data for the purpose of combating serious crime without independent oversight. The court said it was up to the Irish judicial system to “determine whether any mobile phone data gathered in respect of any criminal investigation should be admissible on a case-by-case basis”.

Dwyer sought to rely on the CJEU ruling in his appeal last March against his murder conviction but his appeal was dismissed.