Dáil Éireann Debate, Wednesday - 27 January 2016
3. Deputy Mick Wallace asked the Minister for Justice and Equality if the legislation regulating State surveillance measures, such as data retention, interception of communications and the use of surveillance and tracking devices, is sufficient to protect the privacy rights of Irish citizens; if she intends to strengthen this legislation in favour of citizens; and if she will make a statement on the matter. [3182/16]
Amharc ar fhreagraLast week in the Dáil, Deputy Clare Daly and I addressed the absurdity of the Minister instigating a review into the Communications (Retention of Data) Act 2011 regarding information on journalists without also conducting a review of the Criminal Justice (Surveillance) Act 2009, the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and the Communications (Retention of Data) Act 2011, all of which give draconian powers to State agencies to abuse the privacy of Irish citizens. The Criminal Justice (Surveillance) Act 2009 allows gardaí, the Defence Forces and Revenue with the say of a superior officer, not a judge, to secretly record an individual with audio and video devices, break into their home, install video cameras and recording equipment, secretly put a tracking device on their vehicle and follow their movements. A report with no details or statistics is produced at the end of the year just to cover this area. We are led to believe there are almost 40 applications of this nature per day. It seems very strange that it is not tackled.
I think the Deputy is confusing the statistics under the various pieces of legislation if he is quoting that figure. Those who would seek to commit serious offences or threaten the security of this State have not been slow to embrace the opportunities offered by modern technology at a national and international level. It is, therefore, to be entirely expected that if we want An Garda Síochána and other relevant agencies to be in a position to effectively combat serious crime and terrorism, we must provide them with the necessary and appropriate powers to do so. This is absolutely clear. Such powers, which are available to law enforcement agencies in one form or another the world over, are important tools for police forces in Ireland and around the world. There is no question about that. Recent events highlight the need for that, and we see it here in respect of a variety of cases.
Looking in detail at the various pieces of legislation, the data available under the Communications (Retention of Data) Act 2011 relates to subscriber, traffic and location data, not the content of communications, and it may only be accessed by the relevant bodies empowered to do so for the purposes prescribed and under the terms set out in the Act.
The Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 provides that an authorisation for interception may only be granted by ministerial warrant on application from the Garda Commissioner, the Chief of Staff of the Defence Forces or the chairperson of the Garda Síochána Ombudsman Commission.
The Criminal Justice (Surveillance) Act 2009 provides for authorisations for intrusive surveillance measures to be granted by a judge of the District Court on application by a senior officer of An Garda Síochána, the Revenue Commissioners, the Defence Forces or the Garda Síochána Ombudsman Commission for the purposes prescribed and under the terms set out in the Act and only in accordance with the respective statutory duties of the bodies involved. One must go to a judge to get agreement for anything in the area provided for under the 2009 Act. An independent complaints referee also operates. There is independent judicial oversight and a report produced every year in respect of all of these Acts. There is also the possibility of a complaint.
Additional information not given on the floor of the House
In general terms, these targeted powers are only available in the context of investigating serious crime, that is to say, offences that carry a penalty of five or more years in prison, or for safeguarding the security of the State by the Garda Síochána or the Defence Forces. They do not provide for indiscriminate surveillance of members of the public. I am sure the Deputy would agree that the bodies charged with investigating crime and combating terrorism need to have the appropriate statutory powers available to them to carry out their duties in protecting society.
Genuine concerns have been raised as to the balance in our law between the important freedom of journalists to pursue legitimate matters of public interest and the basic rights of persons not to have their personal information improperly disclosed. I decided to have an independent examination of the law carried out in respect of access by statutory bodies to the communications data of journalists held by communications service providers taking into account, the principle of protection of journalistic sources, the need for statutory bodies with investigative and-or prosecution powers to have access to data in order to prevent and detect serious crime and current best international practice in this area. The former Chief Justice, Mr. Justice John Murray, has agreed to carry out the review and he will bring recommendations to me. The outcome of the review will be referred to the relevant Oireachtas committee.
One page or one day reports at the end of the year do not represent oversight. Section 7 of Criminal Justice (Surveillance) Act 2009 allows any garda above the rank of superintendent to approve internally covert surveillance by another garda. Although section 7 is intended to apply only in exceptional and urgent situations, it clearly allows gardaí to bypass the District Court judge and to approve internally surveillance by each other. There is no requirement for retrospective authorisation by a judge. This idea that a judge looks at it at the end of the year and signs off on it is rubbish. I have a one-page report here. There is no methodology, detail or oversight. We are getting no information back from it. Section 8 sets out provisions for the fixing and use of tracking devices such as GPS on a vehicle and never requires judicial authorisation. It is always internally approved by another garda. Literally and legally, gardaí are a law unto themselves.
The Minister quotes the different pieces of legislation. Digital Rights Ireland has forced the point home many times and it has been picked up by the Europeans. We do not have proper scrutiny of it. When a State interferes with a citizen's right to privacy, particularly when it is done through covert police surveillance, the European Court of Human Rights has repeatedly held that this intrusion must be balanced by the provision of adequate safeguards and remedies to the citizen along with strong external monitoring and oversight of policy and practice. That is not what we are getting.
We do have judicial oversight. Judicial oversight is very important. This particular area is not one in respect of which, for obvious reasons, we would have a huge amount of detail, but the seriousness with which judges take their role in terms of the oversight they must have in place should not be underestimated. There is no question, as the Deputy appeared to be implying in his remarks, of widespread or unsupervised mass surveillance on members of the public by the State. The Deputy should be very clear about that. That would not be lawful and it does not happen. To suggest it does is to misrepresent the legal powers available to the relevant statutory bodies, which use those powers in only very specific circumstances.
In regard to the point about journalists, the Deputy will be aware that I have initiated a review in this area, to include a review of international best practice. If there is need for further supervision then, of course, that should be considered.
Despite media reports to the contrary, prior to today I had raised issues around surveillance 11 times during the lifetime of this Dáil. When I raised with the Taoiseach and the Minister, Deputy Fitzgerald, the question of whether GCHQ had tapped into a fibre optic cable off the coast of Wales, giving total access to Irish phone lines, I was met with blankness. There was no confirmation as to whether permission had been given for that to be done, whether there was any awareness of it or if anything had been done about it. There does not appear to be any interest in tackling this issue.
There is an onus on the State to provide the citizen with legal clarity and foreseeability. We do not get that. There must also be accessibility to any covert surveillance rules or policies in use. We are also not getting that. There is a requirement for real judicial supervision in this area. That the Minister believes that an annual one-day survey of this area is real judicial supervision does not stand up to scrutiny. It is not a rational argument. I do not know how the Minister can say that. We need a complete overhaul of supervision in this area. The privacy rights of citizens in Ireland are being interfered with in an unfair manner without proper scrutiny and oversight. That needs to change.
The Deputy is making statements in respect of which there is no evidence. In regard to his statement that the public is being subject to surveillance, there is no evidence that-----
There is; Snowden produced it.
-----the public is being subject to widespread or unsupervised mass surveillance. We have laws in this regard in place and which were discussed in and by this Oireachtas. For example, if the Deputy reads the 2011 records, he will see that the then Minister, former Deputy Dermot Ahern, at that time discussed in detail the important issue of balancing rights. While he was concerned about the privacy rights of Irish citizens, he believed it was important to have that legislation in place. I am sure the Deputy will agree that particular crimes need to be investigated.
Absolutely.
Access to telephone records can be an important tool. There is no question of that. The Deputy will be well aware of what is happening internationally. The internal systems within, for example, the Garda Síochána Ombudsman Commission, in terms of the methodology used for access to records, require the consent of the Garda Commissioner. The same applies to An Garda Síochána and its internal processes. To suggest there is a casual attitude within these bodies to these powers would be incorrect.
