Communications (Retention of Data Bill) 2009: Report Stage (Resumed).

Debate resumed on amendment No. 1:
In page 5, line 2, to delete "2 years" and substitute "1 year".
— (Deputy Seán Sherlock.)

I acknowledge the Labour Party and Deputy Sherlock support the retention of data. It is not sustainable, however, if one subscribes to the basic principle behind the legislation that data retention is a good measure, helpful in the detection and prosecution of crime but then questions the expert advice and recommendations of the Garda on the retention time. The Garda is having to deal with gangland crime and counter-terrorism. The nature of both do not require the normal instruments of detection and investigation but the use of the most up-to-date technologies. In this respect, we ought to rely on the Garda's recommendations.

Deputy Sherlock is concerned the retention period may put Irish telecommunications businesses, which would store the information and make it available to the Garda, at a competitive disadvantage to their European counterparts. The service providers were not prepared to individually disclose their costs when drafting this legislation, understandably for reasons of commercial sensitivity. The service providers, however, agreed through one of their representative associations to offer a composite figure compiled by the nine largest telecommunications companies in the State. They estimate the annual running costs will come to a total of €1.5 million with a once-off capital cost of €2.9 million. In proportionate terms, this is a relatively small amount when one considers the annual turnover of the telecommunications sector. It would be reduced by only a minuscule amount if one were to reduce the data retention period to 12 months.

The argument does not stack up. A review of the operation of the directive is being undertaken by the European Commission. This is important in the context of these amendments and also for the legislation generally. The Commission has been conducting one to one discussions with member states to ascertain how the directive is operating in practice in each country. The discussion with our officials took place last autumn. The Commission will submit an evaluation of the application of the directive and its impact on operators and consumers to the European Parliament and the Council not later than 15 September. Among the matters taken into account in the evaluation are further developments in electronic telecommunications technology and the statistics submitted by each member state under Article 10 of the directive. I cannot anticipate the outcome of the evaluation or any changes to the directive that may be made by the Parliament or the Council but the opportunity to consider amendments such as those proposed by Deputy Sherlock is when we debate any legislation that may arise from an amended directive.

I wish to express my appreciation to the service providers in operating the data retention scheme in a manner of goodwill and co-operation with the law enforcement authorities. In line with a number of other member states, costs are not reimbursed to the companies. That is a good example of how the industry can give practical effect to its social and corporate responsibility in helping our law enforcers to fight crime by disclosing information at their disposal.

I would not like to see the House divide on these amendments. I listened carefully to the points well made by Deputy Sherlock. We discussed this on Committee Stage and it does not appear we will resolve the matter. This will give rise to a situation where the House divides and votes. With the backing of his party and his partners in government, the Minister of State will win the day. It would be a pity if that is the end of the situation because important points have been raised. It is a question of finding a balance between privacy for the citizen and security and protection for persons and communities. It is a question of how best we can strike a balance.

We are transposing an EU directive. Some EU directives do not provide for an element of discretion as provided for in this measure. The Minister of State referred to the discretion available to national governments in respect of the time limit. The Minister of State provides for two years for retention whereas Deputy Sherlock believes this is too long. In an attempt to arrive at a meeting of minds, what is the norm in other European countries? On Second Stage we made reference to the European countries that had already transposed the directive. I was critical that the directive has been knocking around for quite some time but had not been enshrined in national legislation. It would seem most of our European partners have enshrined the directive in national law. Perhaps the Minister of State can advise the House of the precise position in other jurisdictions as to the retention of usage data with particular reference to telephone, mobile, e-mail and Internet usage records. For example, what is the period in the UK, France, Belgium and other European countries? An important principle of enshrining these directives in our national law is to move towards a harmonised position so that the EU directive, when enshrined by national parliaments in national law, provides an element of consistency so that there is no broad difference that might otherwise arise from national discretion. I would like the Minister of State to let us know the position in other parliaments and jurisdictions having regard to the manner in which other countries have transposed the directive, notwithstanding the discretion to which he refers.

Article 6 of the directive allows for telephone and Internet data to be retained for a minimum of six months and a maximum of two years. We all accept the principle of the retention of data and each state is at liberty to choose where on that scale it pitches its obligatory data retention provision. The norm is as per the Labour Party position set down in these amendments. There is no contradiction between being in favour of the principle of the retention of data and being against what the Government proposes. If one puts an onus on Internet service providers and telephony companies to retain data, they must retain all Internet related traffic for a period of two years. If one is investigating a crime, one cannot speak to the content of the data. If I use my Gmail account to e-mail someone, who is subsequently charged with a crime, one can only state that correspondence took place between me and the other person but one does not have access to the content. Why would one impose a cost beyond 12 months on a telephony company or an Internet service provider if one can merely deduce that communication took place without having access to the content? Let us consider the examples of social networking sites such as Bebo, Facebook and Twitter and web-based e-mail accounts such as Hotmail. The Minister of State cannot argue that this measure will not place a cost burden on these providers because every single piece of traffic must be stored somewhere. I imagine the vast bulk of it will be stored outside the confines of the State because many of these Internet service providers are international companies and have specific storage facilities. However, it will increase the cost burden for those who operate in Ireland, such as Irish companies with storage facilities here. By increasing the cost burden, one must consider whether it will be pertinent to the solving of a crime thereafter. The argument of the Labour Party is that it will not.

On Committee Stage, the Minister of State commented:

The significance of this is that Internet is a relatively new technology. It is accepted that the vast majority of disclosure requests [the requests that will arise from the vested officers] are for data less than three months old.

If the vast majority of disclosure requests are for data less than three months old, the position of the Labour Party is that the measure exceeds that which the Minister of State stated on Committee Stage. That is the logic behind the two amendments we have tabled.

To answer Deputy Flanagan's question, the retention periods for data vary significantly across the European Union. This reflects, as the Deputy observed, the discretion available to each member state, which in turn reflects the fact that each state has a different court system, judicial system and investigative system. The French system, for example, is very different from ours and cases tend to be processed much quicker. The Italian system, on the other hand, can involve a very elongated investigative process. The retention period in that country is 29 months which reflects the extensive investigative period. Our system of constitutional rights and the rights of accused persons is so highly developed that our investigative times tend to be longer than the norm, which is reflected in the data retention period. I do not have time to list the data for all member states but I can provide the Deputy with that information. In short, the retention period for telephony data ranges from six months in Austria to 29 months in Italy.

I accept that Deputy Sherlock makes his point in good faith. We are agreed on the need for data retention but disagreement arises on the question of where the balance lies. I accept that the majority of requests are made within a three-month period. However, one must balance that against the very small cost to extend the retention of the information from the 12-month period proposed by the Labour Party to the 24-month period proposed by the Government. That cost is relatively minuscule when one considers that most of the costs are on the capital side and are front-loaded. One must balance the two. I am concerned that we do not allow a situation to arise, if we were to accept the Labour Party proposal, where that balance would ultimately fall in favour of a criminal such that he or she could not be convicted because a vital element of evidence is not available to the Garda.

Moreover, we must accept that investigations that depend on electronic data, DNA evidence, CCTV footage and other modern forms of technology tend to be slow and painstaking. They proceed incrementally depending on certain items of information that come to the attention of the Garda. Sometimes, as in the case of several gangland crimes, including gangland murders, it can take a long time for the information to come into the possession of the Garda. It may transpire, for example, that the Garda, having brought a prosecution to a certain level, comes into the possession of information 18 months after a crime was committed which leads them to seek data, such as mobile telephone records, which could place a new suspect in a particular place at a particular time. If gardaí in that situation were unable to obtain that information because we had reduced the limit from 24 months to 12 months, and if they subsequently failed to bring about a prosecution, we would not have done a good day's work in this House. We must balance that consideration, which is based on the advice of gardaí with responsibility in this area, against the small additional cost of retaining the information for an additional period of 12 months. The balance lies heavily in favour of retaining a period of 24 months rather than 12.

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 73; Níl, 69.

  • Ahern, Michael.
  • Ahern, Noel.
  • Andrews, Chris.
  • Ardagh, Seán.
  • Aylward, Bobby.
  • Blaney, Niall.
  • Brady, Áine.
  • Brady, Cyprian.
  • Brady, Johnny.
  • Browne, John.
  • Byrne, Thomas.
  • Carey, Pat.
  • Collins, Niall.
  • Conlon, Margaret.
  • Connick, Seán.
  • Cregan, John.
  • Cuffe, Ciarán.
  • Cullen, Martin.
  • Dempsey, Noel.
  • Devins, Jimmy.
  • Dooley, Timmy.
  • Fahey, Frank.
  • Finneran, Michael.
  • Fitzpatrick, Michael.
  • Fleming, Seán.
  • Flynn, Beverley.
  • Gormley, John.
  • Hanafin, Mary.
  • Harney, Mary.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Hoctor, Máire.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Kenneally, Brendan.
  • Kennedy, Michael.
  • Killeen, Tony.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • Lowry, Michael.
  • McEllistrim, Thomas.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McGuinness, John.
  • Mansergh, Martin.
  • Moloney, John.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M.J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Brien, Darragh.
  • O’Connor, Charlie.
  • O’Dea, Willie.
  • O’Donoghue, John.
  • O’Flynn, Noel.
  • O’Hanlon, Rory.
  • O’Keeffe, Batt.
  • O’Keeffe, Edward.
  • O’Rourke, Mary.
  • O’Sullivan, Christy.
  • Power, Peter.
  • Power, Seán.
  • Roche, Dick.
  • Ryan, Eamon.
  • Sargent, Trevor.
  • Scanlon, Eamon.
  • Smith, Brendan.
  • Treacy, Noel.
  • Wallace, Mary.
  • White, Mary Alexandra.

Níl

  • Bannon, James.
  • Barrett, Seán.
  • Behan, Joe.
  • Breen, Pat.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Burke, Ulick.
  • Burton, Joan.
  • Carey, Joe.
  • Clune, Deirdre.
  • Connaughton, Paul.
  • Coonan, Noel J.
  • Costello, Joe.
  • Coveney, Simon.
  • Creed, Michael.
  • Creighton, Lucinda.
  • D’Arcy, Michael.
  • Deenihan, Jimmy.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Enright, Olwyn.
  • Feighan, Frank.
  • Flanagan, Charles.
  • Flanagan, Terence.
  • Gilmore, Eamon.
  • Hayes, Brian.
  • Hayes, Tom.
  • Higgins, Michael D.
  • Hogan, Phil.
  • Howlin, Brendan.
  • Kehoe, Paul.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • McCormack, Pádraic.
  • McEntee, Shane.
  • McGinley, Dinny.
  • McGrath, Finian.
  • McHugh, Joe.
  • McManus, Liz.
  • Morgan, Arthur.
  • Naughten, Denis.
  • Neville, Dan.
  • Noonan, Michael.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Donnell, Kieran.
  • O’Dowd, Fergus.
  • O’Keeffe, Jim.
  • O’Mahony, John.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • O’Sullivan, Maureen.
  • Penrose, Willie.
  • Perry, John.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Sheahan, Tom.
  • Sheehan, P. J.
  • Sherlock, Seán.
  • Shortall, Róisín.
  • Stagg, Emmet.
  • Timmins, Billy.
  • Tuffy, Joanna.
  • Upton, Mary.
  • Varadkar, Leo.
  • Wall, Jack.
Tellers: Tá, Deputies Pat Carey and John Cregan; Níl, Deputies Emmet Stagg and Paul Kehoe.
Question delcared carried.
Amendment declared lost.

Is Deputy Sherlock pressing amendment No. 2?

Yes. I move amendment No. 2:

In page 5, line 3, to delete "one year" and substitute "6 months".

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 73; Níl, 68.

  • Ahern, Michael.
  • Ahern, Noel.
  • Andrews, Chris.
  • Ardagh, Seán.
  • Aylward, Bobby.
  • Blaney, Niall.
  • Brady, Áine.
  • Brady, Cyprian.
  • Brady, Johnny.
  • Browne, John.
  • Byrne, Thomas.
  • Carey, Pat.
  • Collins, Niall.
  • Conlon, Margaret.
  • Connick, Seán.
  • Cregan, John.
  • Cuffe, Ciarán.
  • Cullen, Martin.
  • Dempsey, Noel.
  • Devins, Jimmy.
  • Dooley, Timmy.
  • Fahey, Frank.
  • Finneran, Michael.
  • Fitzpatrick, Michael.
  • Fleming, Seán.
  • Flynn, Beverley.
  • Gormley, John.
  • Hanafin, Mary.
  • Harney, Mary.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Hoctor, Máire.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Kenneally, Brendan.
  • Kennedy, Michael.
  • Killeen, Tony.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • Lowry, Michael.
  • McEllistrim, Thomas.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McGuinness, John.
  • Mansergh, Martin.
  • Moloney, John.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Brien, Darragh.
  • O’Connor, Charlie.
  • O’Dea, Willie.
  • O’Donoghue, John.
  • O’Flynn, Noel.
  • O’Hanlon, Rory.
  • O’Keeffe, Batt.
  • O’Keeffe, Edward.
  • O’Rourke, Mary.
  • O’Sullivan, Christy.
  • Power, Peter.
  • Power, Seán.
  • Roche, Dick.
  • Ryan, Eamon.
  • Sargent, Trevor.
  • Scanlon, Eamon.
  • Smith, Brendan.
  • Treacy, Noel.
  • Wallace, Mary.
  • White, Mary Alexandra.

Níl

  • Bannon, James.
  • Barrett, Seán.
  • Behan, Joe.
  • Breen, Pat.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Burke, Ulick.
  • Burton, Joan.
  • Carey, Joe.
  • Clune, Deirdre.
  • Connaughton, Paul.
  • Coonan, Noel J.
  • Costello, Joe.
  • Coveney, Simon.
  • Creed, Michael.
  • Creighton, Lucinda.
  • D’Arcy, Michael.
  • Deenihan, Jimmy.
  • Durkan, Bernard J.
  • English, Damien.
  • Enright, Olwyn.
  • Feighan, Frank.
  • Flanagan, Charles.
  • Flanagan, Terence.
  • Gilmore, Eamon.
  • Hayes, Brian.
  • Hayes, Tom.
  • Higgins, Michael D.
  • Hogan, Phil.
  • Howlin, Brendan.
  • Kehoe, Paul.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • McCormack, Pádraic.
  • McEntee, Shane.
  • McGinley, Dinny.
  • McGrath, Finian.
  • McHugh, Joe.
  • McManus, Liz.
  • Morgan, Arthur.
  • Naughten, Denis.
  • Neville, Dan.
  • Noonan, Michael.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Donnell, Kieran.
  • O’Dowd, Fergus.
  • O’Keeffe, Jim.
  • O’Mahony, John.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • O’Sullivan, Maureen.
  • Penrose, Willie.
  • Perry, John.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Sheahan, Tom.
  • Sheehan, P. J.
  • Sherlock, Seán.
  • Shortall, Róisín.
  • Stagg, Emmet.
  • Timmins, Billy.
  • Tuffy, Joanna.
  • Upton, Mary.
  • Varadkar, Leo.
  • Wall, Jack.
Tellers: Tá, Deputies Pat Carey and John Cregan; Níl, Deputies Emmet Stagg and Paul Kehoe.
Question delcared carried.
Amendment declared lost.

I move amendment No. 3:

In page 5, line 43, before ", shall" to insert the following:

"or that are the subject of a request undersection 6”.

This amendment seeks to ensure that when a request is made it is dealt with immediately, which would strengthen the provisions of section 6.

Under section 4(1)(d) data retained for the purposes of the Act must be destroyed by the service providers at the end of the two-year and one-year periods for retention of telephony and Internet data, respectively. The one exception is data that have been accessed and preserved. The wording complies fully with Article 17 of the directive. The amendment seeks to add to that data which are the subject of a request by law enforcement authorities. The amendment is unnecessary for two reasons. First, section 4(1)(d) places an obligation to destroy data that have been retained under section 3, namely, data that would have been the subject of a request under section 6 — in other words data that have been accessed and preserved. Therefore, what the amendment seeks to achieve is already catered for.

Second, retained data must be destroyed by the service providers after two years in respect of telephony data and 12 months in respect of Internet data. The question arose when the Bill was being prepared as to what would happen to data that might be requested, say, an hour before they were due to be destroyed and could not be disclosed in the short time available. I am assured that rarely, if ever, has this happened under the existing arrangements but nonetheless it was considered prudent to cater for such an eventuality. Section 4(1)(d) provides for a grace period of one month after the retention period has expired for data to be destroyed. This allows sufficient time to arrange for the destruction of data and for any late requests within the specified times for data to be disclosed.

Both the service providers and the law enforcement authorities have expressed their satisfaction with this arrangement. As this arrangement deals adequately with the intent of the amendment, this is not necessary and there is no need for me to include it in the Bill.

There is no need for me to elaborate further, and I intend to press the amendment.

Question put and declared lost.

I move amendment No. 4:

In page 6, lines 41 and 42, to delete "within 2 working days of the request being made" and substitute "forthwith".

Again, this is rather a technical amendment. I am seeking to ensure that there is a more immediate confirmation of an oral request. When oral requests are made they should be done expeditiously and properly and, if this law is to be passed and disclosure requests are made, we want to ensure that the procedure is so tight, there can be no ambiguity as regards the processing such requests, so that this does not become subject to question thereafter in a court of law or by other means. We want to ensure the procedure is watertight.

Deputy Sherlock wishes to remove ambiguity from the requirement to provide written confirmation of the request, but we respectfully suggest that by substituting the word, "forthwith", for a defined period of two working days in itself introduces ambiguity. Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 provides that where a disclosure request is made orally, it must be confirmed in writing within 24 hours. We have been advised by the Garda Síochána that this can cause problems, especially at weekends and bank holidays when the Garda chief superintendent who approved the oral request might not be available for a few days. For that reason the person who makes the oral request is being given two working days to confirm it in writing.

The significant point is that the request will be confirmed in writing and two working days, the Government submits, is not an unreasonable period. It is the specific time that is clear to all concerned, and as such is unambiguous. The word "forthwith" leaves some uncertainty with regard to what would be an acceptable period of time. If it means immediately, it must be remembered that the reason the request is being made orally is because of the urgency of the situation, such as in a kidnapping where there is simply no time to prepare a written request. The investigating garda might not, because of the urgency and seriousness of the situation, be in a position to put the request in writing to the chief superintendent for some hours. By then the chief superintendent might be off duty.

In the circumstances I am satisfied that a statutory limit of two working days is reasonable and any lesser period — or worse, a reference to an indefinite time period such as "forthwith" — would cause problems. In essence, we are trying to avoid a situation where a defendant in a criminal prosecution would be able to make an argument as regards what "forthwith" actually means in terms of seconds, minutes, hours or days. Given that ambiguity if he or she was to successfully argue that the request was not followed up in writing "forthwith", if that was the wording of the legislation, then it is conceivable that the request might be deemed to be invalid and the information and data supplied on foot of such an invalid request, in the event, could jeopardise the prosecution of a case. Therefore, to remove that type of ambiguity and achieve certainty, where everybody knows where they stand, the Government is of the view that two working days is not an unreasonable period of time.

I accept the Minister of State's response.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 6, to delete lines 43 and 44 and substitute the following:

"7.—A provider shall comply with a disclosure request made to the service provider only where it is technically possible and reasonable in scope in that the request is not so wide as to place an undue cost on the service provider.".

There are suggestions that the telecommunications industry, through various submissions it has made, would request that this should be brought into the legislation. The amendment is self-explanatory. We are asking that a provider shall comply with a disclosure request made to the service provider only where it is technically possible and reasonable in scope — in that the request is not so wide as to place an undue cost on the service provider.

Again, with reference to the cost burden, if, for instance a designated officer should make a disclosure request, there has to be a reasonable approach to this. If, for instance, the request trawls so wide as to be entirely non-specific and take up a large amount of time, then this will obviously place a burden on the relevant ISP or telephone company. If a disclosure request is as wide-ranging as a chief superintendent determines it should be, then we must be mindful of the cost to the service provider in yielding up that information.

I know the Minister of State will argue to the effect that disclosure requests are needed and there has to be discretion on the part of the chief superintendent. Nonetheless, I believe the request has to be targeted and some degree of scope must be allowed for as regards the ISP or telephone company. That is fundamentally what I am addressing here.

I understand where Deputy Sherlock is coming from in this regard. Indeed, the thrust of his amendments are not to put an undue burden on the service providers, who are co-operating with the Government and the various statutory authorities on a voluntary basis, to their credit.

Amendment No. 7, however, seeks to replace section 7 with an entirely new section. At present, section 7 obliges service providers to comply with a disclosure request. This means the law enforcement authorities and the service providers are in no doubt of their responsibilities under the Act. Section 7 complies with the requirements of Article 3 of the directive. Any lessening of the obligation to retain data as suggested in the amendment could leave us in the position of being informed by the Commission that we were not in full compliance with the directive, along with all that would entail for the country.

The amendments would seriously affect the law enforcement the ability of agencies to seek data for the purposes established by the Bill and would introduce a large element of uncertainty into the operation of the legislation. As regards the wording of the amendment, of course everything is technically possible within the confines of the directive, but what is reasonable and does not entail an undue cost are subjective judgments and would depend on the circumstances of each individual case. However, by their very nature it is difficult to envisage a scenario whereby blanket requests would be made. The legislation provides that such requests may only be made in respect of serious offences and the nature of such serious offences are set out in the legislation. It is difficult to envisage a situation whereby someone could inquire into or investigate a serious offence and that the request for disclosure from a service provider or telephony operator would not be of a very specific character; for example, a request related to one suspect or a possible witness, where he or she was, whether he or she made a phone call or whether two potential suspects make a call to each other. It is difficult to envisage circumstances whereby there could be a broad trawl. However, I understand where the Deputy is coming from.

At present, data retention arrangements operate within the statutory provisions established in the Criminal Justice (Terrorist Offences) Act 2005 on the basis of goodwill and co-operation between the Garda Síochána and the service providers. This means both sides use common sense when requesting or supplying data. The memorandum of understanding being drawn up between the law enforcement authorities and the service providers will ensure both sides are clear about how the system will operate. Amendments such as this proposed amendment could affect such goodwill and introduce the uncertainty to which I referred earlier. Deputies will note there is no penalty for failure to comply with a disclosure request. The reason for this is not to draw the criminal law into a system that works well without it and which is essentially voluntary in nature. Similarity, the system has worked well without the proposed amendment and for this reason the Government is not disposed towards accepting the Labour Party amendment.

To my mind, the memorandum of understanding referred to by the Minister of State on Committee Stage is not on a statutory footing. Section 7 states that service providers shall comply with a disclosure request made to them. It is important the views of the telcos and the ISPs, Internet service providers, are acknowledged. One of the parties to the memorandum of understanding is the ISPAI, Internet Service Providers Association of Ireland. It made a submission on the Bill and stated section 7 was far too wide and unwieldy and takes no account of what is reasonable, technically possible and not very expensive. Its recommendation is that a service provider shall comply with a disclosure request made to it only where it is technically possible. I take on board the views expounded by the Minister of State but the reality is that we do not know for sure how many requests will be made by a designated officer. We do not know for what purposes such requests will be made, against whom they will be made or the reasons why they may be made. If we accept in good faith what the Minister of State is saying, then we deduce requests will only be made in respect of taxation or an investigation by the Revenue Commissioners, a chief superintendent or an officer of the law.

I refer to the Bills' digest, a very good document published by the Oireachtas Library service. It states that under the Bill an individual can only find out that data relating to him or her is accessed on foot of a disclosure request by first making a request on the basis that they believe the data has been accessed. This veers somewhat from the point of the amendment but I seek to nail down the idea that there is a clear focus in respect of how the legislation is used. We may agree that one must retain data and that such data can be pertinent to solving a crime but we have no wish for anyone to flout the purpose of the legislation for their own ends. We have no wish for anyone to make nefarious requests for disclosure and trawl with the net so wide such that it would put a cost on the ISPs and such that a service provider is spending resources for something that may not be for the detection of a crime or for which the legislation is designed. I wish to put down a marker in this respect and I intend to press the amendment.

I understand the basis upon which Deputy Sherlock argues his point, but we should remember that a request can only be made by the Garda Síochána at the level of a chief superintendent, a very senior officer. While it is important that we set out robust and strong legislation that is not open to abuse, the fact that a request can only be made in respect of a serious offence set out in the legislation and by a chief superintendent would not, it is hoped, give rise to such abuses as those about which Deputy Sherlock has expressed concern and has questioned. We agree that no one should flout the powers enshrined in the legislation but were the scenario painted by Deputy Sherlock to materialise I refer him to the provision that requests are audited and reviewed by a High Court judge. If, under the relevant section of the legislation, a High Court judge observes that an unreasonable number of requests are made or that a general trawl for information is made, a possibility to which Deputy Sherlock adverted, he reports directly to the Taoiseach. I suggest this is a further level of oversight that, I trust, would assuage the fears of Deputy Sherlock.

Is the Deputy pressing the amendment?

Do we know who the responsible judge would be in respect of this oversight? How has that system been used? Has the judge used this provision in respect of other legislation? My understanding is that provision is also relates to the interception of postal packets and telecommunications messages and the oversight is pertinent with regard to that legislation. I am given to understand reports are rubber-stamped in respect of how that provision works, without any qualitative analysis of the provision in question. I am unconvinced that the oversight mechanism in this legislation would be used as designated. I suspect that the oversight provision will end up simply being rubber-stamped as per other legislation and that we will not know in real terms whether the legislation will be flouted or abused by certain persons. It is open to abuse regardless of whether one accepts the bona fides of a chief superintendent or any other designated officer. That is the point we want the Minister of State to clarify. I want to ensure disclosure requests are made only where it is technically possible and reasonable and that the oversight mechanism will be subject to proper scrutiny.

I am inclined to agree with the Minister of State's view on this, notwithstanding the strong case put forward by Deputy Sherlock. We have strayed a little from the amendment by explaining the rationale behind it.

Such an explanation is important.

The Minister of State has given certain assurances regarding the level of oversight and outlined that it will be exercised by the Chief Superintendent and High Court judge. In this regard, will the Minister of State compare the position of High Court judge to the Office of Surveillance Commissioners in Britain? Were the Minister of State to clarify a number of matters related to the role of the High Court judge, it might meet the concern expressed by Deputy Sherlock in his amendment. Will the Government consult the President of the High Court in the selection of a designated judge? The High Court judge should be specifically designated. Prior to the appointment, it should be demonstrated that the judge has a specific interest and training in these matters and knowledge thereof. It is essential that a regular or general High Court judge not be appointed and that the appointee be somebody with specific responsibility, identity, training and resources. If the latter is guaranteed, the legislation will be stronger by dint of everybody knowing the oversight judge is operating on a basis that involves more than just a referral to a High Court judge who may also be engaged in addressing more general, civil or criminal duties. This is important.

Will the judge appointed and designated have his or her own office with personnel? I refer to circumstances in which there would be a designated unit producing the report rather than circumstances in which the report would be issued from the chambers of judges also engaged in general judicial duties. Will there be a specific office with specific civil servants appointed thereto serving the judge, engaging in oversight, producing the report and ensuring a properly functioning system for the reporting judge and Taoiseach?

This goes to the heart of the concerns of the Labour Party, including Deputy Sherlock, regarding whether the legislation will be abused. Sections 11 and 12 deal with the matter. The High Court judge currently dealing with this matter is Judge Iarla O'Neill. Section 11 provides that the President of the High Court shall, in consultation with the Minister, undertake the duties set out in section 12. In other words, one of the most senior judicial officers in the country will, in consultation with the Minister, make the appointment. It is only reasonable to expect that the President would appoint somebody with a special interest or experience in this area. It would not be right for the legislation to set out in detail that a High Court judge ought to have certain qualifications.

It is very important that the powers of the High Court judge be set out in legislation. I refer to the powers to investigate any case in which a disclosure request has been made and to access and inspect official documents or records relating to the inquest. More important, the judge shall, or have an obligation to, keep the operation of the provisions of the Act under review, ascertain whether the Garda, the Permanent Defence Force and the Revenue Commissioners are complying with its provisions, and, if necessary, include in the report to the Taoiseach such matters relating to the legislation that the designated judge considers appropriate. I hope this deals with Deputy Sherlock's point.

We entrust certain matters such as these to High Court judges regularly in many different areas of legislation in respect of which independent oversight is required on the part of an experienced, independent and totally impartial person. The legislation provides the High Court judge with the powers and facilities to ensure the legislation is not abused.

Amendment put and declared lost.

I move amendment No. 6:

In page 7, between lines 20 and 21, to insert the following:

"(5) A report under this section shall contain details of the numbers of prosecutions actually commenced as a result of investigations to which requests related, and a detailed justification for any significant excess of numbers of requests over numbers of prosecutions actually commenced.".

This is another strengthening provision and it seeks to ensure that the law will not be flouted in any way. It speaks to the theme of amendment No. 5.

Bearing in mind the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, the current reporting format is inadequate, even if there is judicial oversight. If one examines some of the reports and documents arising from the oversight procedure, one will see they contain a single paragraph stating records regarding the legislation have been examined by a judge. That is all they state. We do not want similar circumstances obtaining regarding the legislation under discussion.

We would like to have included a provision seeking to examine the nature of the disclosure requests. If a request is made and leads to a criminal offence or prosecution, there would be some justification for the provision. However, if there were a large number of disclosure requests made but no correlation between those requests and subsequent prosecutions, it would provoke questions. There is always a need for some form of qualitative analysis to ensure legislation is working properly and fit for purpose. That is why the Labour Party is saying a detailed report should be made.

Oireachtas Library and Research Service documentation states an individual can only find out if data relating to him or her has been accessed on foot of a disclosure request by first making a request on the basis that he or she believes the data have been accessed. That is a fairly serious provision. The reporting procedure could redress such a disparity in the Bill. If one does not know that a disclosure request has been made about one, one has no way to access the referee or other such designated person. Perhaps the Minister has a view on that. If my understanding of the provision is wrong, I will openly acknowledge it but the amendment will ensure that the legislation is not used for nefarious purposes, that it is fit for purpose and that it is used in a manner to ensure that somebody cannot trawl widely for a disclosure request and do so for purposes other than expediting justice.

There are two points involved here. One is the intention to ensure that the legislation is not abused. We would agree with any provision that seeks to prevent that. The second point is the compilation of qualitative information for submission to the European Union for the purpose of reviewing both this legislation and legislation across the European Union. These are two very different matters. With regard to ensuring the legislation is not abused, the relevant oversight and the High Court judge's report to the Taoiseach, which we mentioned in our previous discussion, deal with that.

This section essentially deals with the necessary compilation of information for submission to the European Union. Article 10 of the directive obliges member states to provide statistics to the Commission on an annual basis on the retention of data generated or processed under the terms of the directive. The statistics must include: first, the cases in which information was provided to the competent authorities in accordance with the applicable national law; second, the time elapsed between the date on which the data were retained and the date on which the competent authority requested the transmission of the data; third, the cases where requests for data could not be met. Section 9(5) of the Bill sets out the information that must be contained in the reports by the Garda Commissioner, the Chief of Staff of the Permanent Defence Forces and the Revenue Commissioners. That information precisely reflects the requirements of the directive.

The purpose of the statistics compiled under section 9 is that they must be transmitted to the Commission each year. For the purposes of clarity and consistency it would be desirable that each member state compile and transmit the same classes of statistics to the Commission. Those classes should be as required by the directive. Section 9 has no other purpose. Any statistics compiled under it that are in addition to those required under the directive would therefore have no added value. I have already mentioned the evaluation of the operation of the directive being carried out by the Commission. Under Article 14 of the directive the Commission is obliged to submit to the European Parliament and the Council of Ministers an evaluation of the application of the directive and its impact on economic operators and consumers. The statistics submitted under section 9 will feed into that evaluation. Without meaning in any way to anticipate what the report might say, if it transpires that changes to the system of compiling the statistics are included, that would be the appropriate time to consider amendments to the statistics regime.

It is also the case that the type of statistics sought by the amendment could prove misleading. In the normal course of events, evidence is compiled from a variety of sources and only when put together can a file be submitted to the Director of Public Prosecutions. It is not usual that a prosecution would commence on the basis of the data information alone. Evidence can emanate from a range of different sources. It would be impossible to draw a direct correlation between requests submitted and prosecutions. At its most simple, submitting a request as to when a Mr. Ryan made a telephone call will not, of itself, lead to a prosecution. Making a telephone call is not an offence. It is just part of a pile of different evidence to be collected. When all the evidence is put together and the full picture is available to the Garda, a prosecution can then take place. It is just not possible to draw a connection between a request and a prosecution. Even if it were, the administrative time involved in putting together all that information and trawling through every case to see if a request for information on retained data led to a prosecution would be incredibly burdensome for the Department, the Garda or whatever administrative authority is charged with supplying the retained data.

The Minister of State offered the example of a Mr. Ryan, so I will continue to use that example. He also referred to the requirements of the directive and the terms under which data must be submitted to the Commission. I accept that point. However, if we are discussing the rights of this Mr. Ryan in respect of whom disclosure is requested, under the Bill Mr. Ryan can only find out if a disclosure request has been made by first making a request to the Data Protection Commissioner on the basis that he believes that personal data has been accessed. If the data relating to Mr. Ryan has been accessed, there is no analysis after the fact. If nothing arises from the disclosure and Mr. Ryan is innocent, there is nothing in the analysis thereafter that allows Mr. Ryan to know that a disclosure request was made about him by one of the designated officers. The reporting mechanism to the Commission does not allow for that either.

We are trying to ensure that if Mr. Ryan is not prosecuted, a report under this section will contain details of the numbers of prosecutions actually commenced as a result of investigations to which requests related and detailed justification for any significant excess in numbers of requests. If no prosecution is taken against Mr. Ryan, it could be argued that it is an excess. That must be quantifiable as well. I know I am repeating myself but I am trying to strike a balance between what is appropriate and inappropriate use of the disclosure request in the first instance to ensure that in the case of people who are innocent parties and against whom disclosure requests are made, the State, because of a reporting procedure, 12 months after the enactment of the Bill would be able to note an inordinately large amount of disclosure requests from a particular source about a certain person where no action has arisen from them. It is right to have a method by which we can question that process.

I might be overly pedantic about this but we must prevent nefarious use of the law. That is my objective.

Deputy Sherlock is right to try to strike a balance between the rights of the citizen and the rights of an accused person. However, if one were to disclose to an individual who is under investigation by the Garda for a criminal offence that data relating to them has been requested, one would be effectively telling the person that he or she is under investigation. That would inevitably compromise the chances of the Garda concluding its investigation and bringing a successful prosecution. I can offer an example. Unfortunately, it is all too common these days that a contract assassin would travel from one part of the country to another to carry out a hit. If he made a telephone call to the head of a criminal gang to tell him he is on his way to that part of the country and if there were an obligation to inform him in the course of a criminal investigation that a request to disclose data relating to him was being made by the Garda Síochána, he would immediately know he was under investigation. Therefore, the investigation would be compromised immediately. I do not think we can go down that road.

The fact that gardaí may request information in those circumstances will not in itself lead to the prosecution of an individual. One can never say that a request led to the ultimate prosecution of a hitman. It would depend on a range of other pieces of information. As I mentioned earlier, CCTV information, DNA information and a plethora of different types of information are available to the Garda. It is not practical to draw a connection between a request for retained data and a successful prosecution, leaving aside the fact that the information set out in this section is fully and completely in accordance with what is required of the country in the directive.

Perhaps the Minister of State could clarify and acknowledge whether the Bill states an individual can already find out if data relating to him or her has been accessed on foot of a disclosure request. That provision is already open to the person. Amendment No. 6 includes the statement: "A report under this section shall contain details of the numbers of prosecutions actually commenced as a result of investigations." The Minister and I will differ on this amendment and I will conclude my deliberations on it.

Does the Deputy plan to withdraw the amendment?

I do not; I will press it.

Amendment put and declared lost.

I move amendment No. 7:

In page 8, line 25, after "fit," to insert the following:

"and with due regard to the rights of any person whose life, bodily integrity or property was sought to be vindicated in the criminal investigation concerned,".

The purpose of this amendment is to ensure that some balance is brought into the question of how to deal with a minor breach of section 6. If there is a breach, the user will be notified and may be compensated, but if any prosecution is to be quashed as a result of the destruction of the evidence on the orders of the Data Protection Commissioner, there must be some consideration of the rights of the victim concerned. That is the justification.

This is an amendment which the Government thought, on an initial reading, it could accept or table an agreed amendment which would make the same point as Deputy Sherlock seeks to make. Having given the matter serious and detailed consideration, the Government has decided that not only would it not improve the Bill but it could, unfortunately, give rise to unintended consequences, which I would like to set out. Where a complaints referee concludes that a provision under section 6 has been contravened, the referee may direct the relevant law enforcement authority to destroy the data in question and any copies of it and make a recommendation for the payment of compensation to the applicant. The amendment seeks to qualify both responsibilities of the referee by obliging him or her to have due regard to the rights of any person whose bodily integrity or property was sought to be vindicated in the criminal investigation concerned.

I have some doubts as to whether the question of the payment of compensation should be so qualified, as amendment No. 7 seeks to do. However, destroying data which may be needed at some future time to vindicate the rights of a victim is an entirely different matter. The use of the word "may" in section 10(5) gives the referee discretion about whether to order the destruction of the data and-or the payment of compensation. It is a permissive provision. It would be unnecessary to specify the criteria which the referee has to take into account as he or she already has the discretion to consider whatever relevant factors he or she feels are necessary. To highlight one area in the Bill above all others on which the referee has to use his or her discretion could result in the discretion being used in all cases. The amendment would also depart from the regime established in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and the Criminal Justice (Terrorist Offences) Act 2005. It would be undesirable to give the referee different statutory responsibilities for what are, ultimately, the same duties.

For those reasons, after an initial favourable consideration, the Government is not disposed towards accepting this amendment.

I do not wish to justify it. I withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 10, line 11, to delete "Acts 1889 to 1995" and substitute "Act 1889".

This is a technical amendment. Others more learned than I advised that it be made. We tabled a similar amendment on Committee Stage which the Minister rejected. On reflection, the Minister's reply to our amendment highlighted a further problem, namely, that there is a contradiction between the reference to section 1 in line 10 and the reference to a number of Acts in line 11. The reference in section 1 means that we should refer to the 1889 Act in the singular. As only individual Acts have sections, we have tabled a revised wording on Report Stage.

Before Committee Stage the Minister consulted with the Parliamentary Counsel and the Office of the Attorney General about a similar amendment which, on the face of it, appeared to raise a valid point. The proper citation for the Prevention of Corruption Acts is the Prevention of Corruption Acts 1889-2005. However, the reference to section 1 of the Act changes everything. It is not the intention to allow data to be retained for the investigation of every offence under the Prevention of Corruption Acts. The only offence in respect of which data can be retained is section 1 of the Public Bodies Corrupt Practices Act 1889, which created an offence for any member, officer or agent of a public body to corruptly solicit, receive or agree to receive and give a gift, loan, fee, reward or advantage. The maximum custodial penalty under section 2 of the Act is two years imprisonment.

Sections 1 and 2 of the 1889 Act were amended by section 38 of the Ethics in Public Office Act 1995. It raised the maximum custodial penalty to seven years. This means the relevance of the inclusion of the Prevention of Corruption Acts in the Schedule is of persons being investigated for offences under section 1 of the 1889 Act, alleged to have been committed before the commencement of section 1 of the 1995 Act. For this reason, the reference to the Prevention of Corruption Acts, that is, section 1 of the 1889 and 1995 Acts, is correct, although there is at least one other correct way it could have been drafted. However, it would not be correct to refer, in the reference to the Prevention of Corruption Acts, to any Act after the 1995 Act, as the amendment of section 1 of the 1889 Act was in the 1995 Act. I realise the point I am making raises questions of a technical, drafting nature and, as I said at the outset, the amendment tabled by Deputy Sherlock seemed to be correct or at least raised a valid point, but the Parliamentary Counsel has convinced the Minister that the reference in the Bill is correct.

I withdraw the amendment on that basis.

Amendment, by leave, withdrawn.
Bill received for final consideration.

When is it proposed to take Fifth Stage?