Amendment No. 1 in the name of Deputy Sherlock arises out of committee proceedings and amendment No. 2 is related. Therefore, amendments Nos. 1 and 2 may be discussed together.
Communications (Retention of Data Bill) 2009: Report Stage.
I move amendment No. 1:
In page 5, line 2, to delete "2 years" and substitute "1 year".
I am making the same arguments here as I did on Committee Stage. Looking at the legislation in the main, it is about the transposition of a directive which was completed in 2006. We have to look at the historical perspective and the fact that the directive was initiated as a result, in particular, of the Madrid bombings. It was a counter-terrorism response relating to that period. We are now in a situation where a number of years have past and we are moving towards the final transposition of that directive now. Our view is that some of the provisions in the Bill are excessive, particularly in relation to the length of time for which data must be retained.
The Minister of State's justification for the Government's positionvis-à-vis the two-year retention period for telephony and the one-year retention period for Internet data is on the basis of security and counter-terrorism measures, as well as the detection of crime. We in the Labour Party understand that rationale and would not argue against it. In principle, we are not against the retention of data and believe that the directive must be transposed. However, we take issue with the manner in which it is being transposed and the length of time for which data must be retained, particularly in relation to ISP and telephone records, because we believe this will place an undue burden on business and that the costs could be prohibitive and reduce any future comparative advantage Ireland might gain through the Internet and telecommunications sectors.
I refer to the historical context of the transposition of a directive dating back to 2006 and any subsequent legislation enacted that has dealt with counter-terrorism or crime prevention measures more than adequately, including the Criminal Justice (Surveillance) Act and the recently passed Criminal Justice (Amendment) Act. The Labour Party is examining the permutations of the Government's position, especiallyvis-à-vis the cost implication. I submit that placing on Internet service providers, ISPs, and telephony companies an obligation to store data for two years would result in an undue cost burden and would not have an impact on crime prevention in real terms or in terms of detection. I refer to the Minister’s submission on Committee Stage. He stated that the 12 month detention period for Internet data is very much in the mainstream and this is significant because the Internet is a relatively new technology. He further stated that it is accepted that the vast majority of disclosure requests which would arise as a result of the legislation relate to data less than three months old.
If the requests for data are, to use the words of the Minister on Committee Stage, for data less than three months old, then I submit that the Labour Party amendment, which seeks to substitute two years for one year and one year for six months, would be in line with his thinking in respect to the prosecution of a crime or any investigation pertinent to committing a crime. I further submit that if the legislation is passed and data is to be retained for two years hence, then on this day in two years time, that is, on 23 February or 24 February 2012, if someone were to be investigated for a crime then I suggest any telephone call made on today's date, the content of which is unknown, or if a person logged on to a website in the intervening period of one year hereafter, it would impact in no way on whether one could suitably detect that any such communication was pertinent to any crime committed. The approach of the Government in terms of transposing the directive is that of a sledge-hammer being used to crack a nut.
I reiterate that we are not against the principle of data storage. We agree the directive must be transposed but we maintain the time periods are excessive and, contrary to the Minister's statement on Committee State to the effect that the legislation is in line with the mainstream, we believe it is against the European mainstream and that other countries have transposed the directive on the basis of time periods more in line with the proposal contained in the Labour Party amendment.
I am pleased Deputy Sherlock and the Labour Party support the rationale and the fundamental basis of the legislation. However, it is a great leap to depart from the rationale behind the legislation to challenge the time limits for the two substantive reasons proposed. The first such reason is that the limits would put an undue burden on business and the second is that Ireland would lose a comparative advantage. I regret to say that in the case of both of these grounds no reasons have been given in respect of why the limits would interfere or represent an undue burden on business. No reasons have been given or reports cited. No evidence has been brought forward to suggest that Ireland would lose some form of comparative advantage. I suggest that once the principle is conceded, which I welcome, the time limits, whether six, 12 or 24 months, do not in any material way interfere with the burden on business. In other words, if one imposes an obligation on service providers to provide this information, whether one requests that they retain such information for six, 12 or 24 months in no ways affects their ability to compete. It would not place an undue burden on business. I cannot see the connection between supporting the broad thrust and principle of the Bill and opposing it on the basis that it imposes an undue burden on business.
A point was made that the availability of information to the Garda some 23 months after a crime was committed would be helpful in respect of solving a crime. To my knowledge in respect of criminal investigations, the availability of information for in excess of 12 months has been invaluable to the Garda in helping to solve and to bring forward successful prosecutions. To reduce the time limits set out in the legislation would impede the Garda's ability to investigate a crime and bring forward prosecutions. That is the reality. To suggest otherwise amounts to trying to have one's cake and eat it.
The purpose of the substantive amendments is to reduce the periods for which the telephony operators and Internet service providers will be obliged to hold data. The proposed amendments have already been debated in detail on Committee Stage. From the Government's perspective, the position outlined at that stage in respect of its inability to accept them has not changed. To put it bluntly, accepting these amendments would seriously hamper the law enforcement authorities in their efforts to gather the quality of evidence that could make a significant contribution towards bringing serious criminals to justice, including terrorists. The Labour Party maintains it supports the principle and concept of data retention. Once that principle in conceded, one must rely on the expert and professional advice and recommendations from the Garda Síochána to the effect that the time limits set out would assist them in solving crime.
I refer to the second amendment. The preparation of the Bill involved extensive consultations between officials from the Department of Justice, Equality and Law Reform, the service providers, their representative associations and the Garda Síochána. During these consultations, the issues of retention periods, the nature of the information to be retained and the State's position on costs were discussed and clearly set out to all parties. I acknowledge that in the context of non-reimbursement of costs not everyone is satisfied with the retention periods, but all concerned accepted the importance of data as an essential weapon in fighting serious crime and agreed to co-operate fully to ensure the success of the legislation.
I also acknowledge that our retention period for telephony data is higher than the average for other member states. Member states of different traditions and practices may take differing views concerning the retention of data and the directive grants member states the discretion of selecting the retention periods.