Archive for July, 2006
Digital Rights Ireland has written to the Minister for Justice and Law Reform, Michael McDowell TD, and to the Minister for Communications, Marine and Natural Resources, Noel Dempsey TD and to the Garda Commissioner. We have looked for undertakings from them to cease breaching the Constitutional, statutory and European rights of the citizens of Ireland. Failing a positive response, we have instructed our solicitors, McGarr Solicitors, to prepare legal action.
The legal background to this action is set out below.
On or about the 25th April 2002 Mary O’Rourke as the Minister for Public Enterprise, as she then was, issued a direction to the telecommunications providers in Ireland to retain data generated by customers of the telecommunications providers, purportedly in compliance with Section 110 (1) of the Postal and Telecommunications Services Act 1983.
The Minister for Public Enterprise (as she then was) purported to issue those directions under Section 110 (1) of the Postal and Telecommunications Services Act 1983 requiring telecommunications providers to retain that data, being detailed non-anonymous traffic data, and to retain it for a 3 year period, for the purpose of facilitating requests from An Garda Siochana and from the Defense Forces under Sections 98A and 98B of the Postal and Telecommunications Services Act 1983, as inserted by Section 13 of the Interception of Postal Packets and Telecommunications Messages (regulation) Act 1993.
On the 19th December 2002 the Data Protection Commissioner advised the Department of Communications, Marine and Natural Resources (being the successor to the Minister for Public Enterprise in regard to these matters) that the direction of the Minister for Public Enterprise was, ultra vires, inadequate, constitutionally invalid and was in breach of the Data Protection Acts 1988 and 2003.
The Data Protection Commissioner advised the Department of Communications, Marine and Natural Resources of his intention to issue judicial review proceedings against the Minister of Communications, Marine and Natural Resources, to challenge the validity of any and all such directions issued by the him or his predecessor, to the telecommunications providers. While the actions of the Data Protection Commissioner were laudable, it appears he made no reference to data protection in European law. Data protection is and was the subject matter of Directive 95/46/EC (the transposition of which into national law was the intended objective of the Data Protection (Amendment) Act 2003).
In addition, telecommunications traffic data is specifically protected/regulated by Directive 2002/58/EC, Article 15 of which provides that retention of traffic data for purposes of law enforcement should meet strict conditions i.e. retention in each case to be only for a limited period and only where necessary, appropriate and proportionate in a democratic society.
The Government’s response to the representations of the Data Protection Commissioner was to procure the passing of the Criminal Justice (Terrorist Offences) Act 2005, and specifically the incorporation therein of the provisions of Part 7 thereof. Under that part of the Act, the Garda Commissioner may request a service provider to retain, for a period of 3 years, traffic data or location data or both.
These provisions were not and are not in accordance with European law and presumably for that reason, during the Irish presidency of the European Union, Ireland and, others, pressed for alterations in European Union Data Protection law resulting, ultimately in the publication and adoption of Directive 2006/24/EC.
We believe that the adoption of this Directive was not in accordance with European law. Ironically, this opinion appears to have been shared by the Minister for Justice, Equality and Law Reform, Mr. Michael McDowell. Ireland, through the agency of the Minister for Justice, Equality and Law Reform has taken proceedings under Article 230 of the Treaty of European Union to have the said Directive 2006/24/EC declared invalid by the European Court of Justice.
The claimed legal base for the Directive 2006/24/EC is Article 95 of the EC Treaty. In the opinion of the European Data Protection Supervisor this is not a correct legal base for this Directive. We currently believe that this is the very point on which Ireland has lodged their challenge in the European Court of Justice. The period during which Ireland must transpose Directive 2006/24/EC into national law will not expire until 18 months from April 2006.
In the meantime the direction of 25th April 2002 and the relevant provisions of the Criminal Justice (Terrorist Offences) Act 2005 are unconstitutional, in breach of the data protection law of the European Union, specifically of Directive 95/46/EC and also in breach of the European Convention on Human Rights.
From enquiries we’ve made and despite the aforesaid statement, we believe that the Minister for Justice, Equality and Law Reform may change his opinion and more importantly may, without reference to us, discontinue the said challenge under Article 230 of the Treaty of European Union to have the said Directive 2006/24/EC declared invalid by the European Court of Justice.
Furthermore, Ireland may commence and/or conclude the process of transposing Directive 2006/24/EC into national law.
We have written to the Minister for Communications, Marine and Natural Resources for an undertaking that he will withdraw the aforesaid direction of 25th April 2002 given to the telecommunications providers.
We have written in similar terms to the Garda Commissioner seeking an undertaking in writing that he will not, and he will ensure that no Garda Siochana will, seek access to the data referred to, being detailed non-anonymous traffic data, from the telecommunications providers by means of requests, purportedly lawful or otherwise, under the Criminal Justice (Terrorist Offences) Act 2005 or under the Direction of 25th April 2002.
We have written in similar terms to the Minister for Minister for Justice, Equality and Law Reform, seeking an undertaking in writing that he will not, and he will ensure that Ireland will not, withdraw or otherwise not prosecute the challenge under Article 230 of the Treaty of European Union and that Ireland will not in any circumstances transpose or commence the process of transposition of Directive 2006/24/EC into national law.
In default of hearing from them in the terms requested within seven days we have given instructions to our lawyers to prepare for legal proceedings.
Our Previous posts on Data Retention.
July 29th, 2006
Many thanks to Davin O’Dwyer who has an article in today’s Irish Times setting out our concerns about issues such as fair use, private copying rights, and more:
Whether it’s listening to music on iPods, talking on our mobile phones or surfing the web, most of us have embraced the digital lifestyle. Technology, however, is changing faster than the legislation covering our use of it. So while new technology promises a revolution in the way we consume and interact with different media, it is also giving content providers new ways of controlling our use of the music, movies and information we purchase.
MUSIC The iPod has revolutionised the way we listen to music, but it has also opened a legal minefield. “As it stands in Irish law, it seems to be illegal for you to make a private copy of a CD that you’ve bought, so it’s illegal to copy a CD on to your iPod,” says TJ McIntyre of Digital Rights Ireland. “Needless to say, the music industry would like to be in a position where they sold you the music once on vinyl, once on cassette, once on CD and they’d now like to make you pay for the privilege of listening to it on your iPod.”
In May, the British Phonographic Institute (BPI) recommended that the law be changed to reflect a new reality in which people routinely convert their purchased CDs into MP3s. However, Sean Murtagh of Irma, the Irish equivalent of the BPI, says it has no plans to make a similar recommendation here. …
MOVIES With the advent of video iPods and Sony’s Playstation Portable (PSP) it seems that our DVD collections will eventually join our CD collections in our pockets. However, unlike CDs, DVDs are encrypted to protect the film studios’ copyrights. That is a matter of debate among certain copyright activists – if our CDs are unencrypted, why are our DVDs encrypted? Furthermore, it is illegal to create technology that circumvents copyright-protecting technology. So while copying CDs and putting them on portable players is legal in many countries – though not here – it is impossible to do the same with DVDs.
Movies will have to be purchased in a new format for portable players, even though the technology exists for them to be copied as CDs are. “The beauty of it is that [ the film studios] don’t have to persuade the market,” says McIntyre. “If they can come up with the technology and legislation that prevent fair use, they can ignore the wishes of the consumer.”
TELEVISION In the good old days, you watched something on channel A, you recorded whatever it was you wanted to watch on channel B, and then watched the tape. What’s more, you were legally entitled to do so. But that legal entitlement to fair use is under threat. As the technology moves beyond the VCR to “timeshifting” personal video recorders (PVRs) such as Tivo or Sky+, we should be able to digitally record programmes to a hard drive, skip the ads and move those programmes on to our iPods or PSPs.
However, a “broadcast flag” is being introduced by US networks. Certain programmes would be digitally flagged as, for instance, unrecordable, or watchable only once, or not entitled to be moved to a portable player. “Broadcasters would like to stop via technology what they couldn’t stop by legislation,” says McIntyre. “First they create the technology that stops people doing something [ the broadcast flag], and then they make it illegal for them to circumvent .”
What can we do about these issues? The Consumers’ Group BEUC is running a campaign at a European level, where you can sign a petition to urge MEPs to protect consumers’ rights. We’ll soon be launching an Irish campaign on these issues – watch this space for more.
July 10th, 2006
The Irish Government yesterday started a challenge to the Data Retention Directive before the European Court of Justice. (The challenge was long promised but was filed only yesterday.) What does this mean for us?
On the plus side, the challenge will certainly delay implementation of the Directive, and stands a very good chance of striking it down in its entirety. There is a very strong case that the passing of the Directive was flawed.
On the minus side, the challenge is purely procedural. The Government agrees with the principle of spying on every citizen – it merely alleges that the wrong legal mechanism was chosen. According to the Government, the measure should have been passed by unanimous agreement of all the member states – not by a majority voting procedure. We agree – the directive is clearly an attempt to deal with matters of criminal law that are reserved to the member states, and the fundamental rights of Irish citizens should not be set aside by the majority vote of other EU states. But we’re disappointed that the Government shows no interest in asserting the right to privacy of Irish citizens. The result is that the European Court of Justice, when it eventually deals with the case, will only be hearing about procedure – not privacy. We believe that a law which provides for state-sponsored spying on every citizen, at all times, must be judged on privacy grounds – and that when it is it will be found to violate fundamental rights.
July 7th, 2006
The Irish Centre for European Law is hosting a conference on “Privacy and the Data Retention Directive” on Wednesday, 19 July 2006, from 2-6pm in the Royal Irish Academy on Dawson Street. Speakers will include:
Paul Durrant, Internet Service Providers Association
Billy Hawkes, Data Protection Commissioner
Karlin Lillington, Technology Journalist, The Irish Times
Thomas O’Malley, Barrister and Senior Lecturer, NUIG
T.J. McIntyre, Chairman, Digital Rights Ireland
To register for the conference, telephone 01–608 1845 or email email@example.com. The conference is, alas, expensive (non-members €150, ICEL members €120, students €50) but we have a limited number of discount tickets available. Email firstname.lastname@example.org if you’re interested.
Full details follow
THE IRISH CENTRE FOR EUROPEAN LAW
‘PRIVACY AND THE DATA RETENTION DIRECTIVE’
Chair (First Panel): Mr Justice Nial Fennelly
Chair (Discussion Panel): Dr Eamonn G. Hall
With the assistance of Eircom Solicitors Office
2.25pm Welcome from the Director of the Centre
2.30pm Billy Hawkes, Data Protection Commissioner
‘The Data Retention Directive and Data Protection.’
This presentation outlines the background to the Data Retention Directive and comments on its main provisions. While recognising the potential value of telecoms data in crime prevention and investigation, it highlights the concerns that have been expressed about the Directive by EU Data Protection Authorities. It compares the Directive provisions to the present Irish legislation on data retention and suggests that transposition of the Directive into Irish law might provide an opportunity for additional safeguards to protect data privacy. It suggests that such safeguards could be put in place without compromising law enforcement and should be implemented even if the Irish Government’s ECJ challenge to the Directive were to succeed.
3.05pm T.J. McIntyre, Chairman, Digital Rights Ireland and Faculty of Law, UCD.
‘Privatising the Panopticon: The Civil Rights Implications of Universal Surveillance.’
This paper will look at the threats which mass surveillance poses to privacy and freedom of expression.
3.40pm Q & A
4pm REFRESHMENT BREAK
4.30pm PANEL DISCUSSION
Karlin Lillington, Technology Journalist, The Irish Times
Speaker’s Abstract: In barely a decade, Ireland has gone from one of the nations most protective of digital privacy rights, as embedded in the 2000 Electronic Commerce Act, to one of the most oppressive amongst Western democracies. Most of this change was made in a deliberately surreptitious manner, using legislation that was, ironically, put in place to prevent such abuses in the first place. Such a switch has profound implications for how the State views its citizens, and how attractive Ireland continues to be for the technology sector that underpins the strong economy here, with the current legal situation leaving the door wide open to State and law enforcement abuses.
Paul Durrant, General Manager,
Internet Service Providers Association of Ireland
Speaker’s Abstract: This presentation highlights a number of key technical uncertainties, implications and conundrums faced by the ISP industry in implementing and complying with the Data Retention Directive, who at the same time are attempting to balance legal and moral obligations of privacy and data protection expected by business and residential customers utilising the ever increasing number of services offered by way of the Internet in a free and democratic society.
Thomas O’Malley, Barrister-at-Law and Senior Lecturer, N.U.I.G.
6pm CLOSE OF CONFERENCE
Paul Durrant, M.Sc., is General Manager of the Internet Service Providers Association of Ireland and a member of Government’s Internet Advisory Board. He has over 25 years experience in the Information and Communications Technologies sector providing Internet infrastructure, e-commerce and digital media production consultancy to private sector and EC DGXIII; M.D. of MTI, the national centre which instigated digital media information systems development; Technical Director, CACI Dublin, simulation software development and over ten years in IBM Ireland as Software Development Manager and Systems Engineer.
Mr Justice Nial Fennelly is a Judge of the Supreme Court and former Advocate-General of the European Court of Justice. He is Chairman of the Centre.
Dr Eamonn G. Hall is the chief solicitor of Eircom Group plc., chief examiner in constitutional law and consultant in judicial review to the Law School of the Law Society of Ireland. A former president of the Medico-Legal Society of Ireland, past chairman of the Irish Society for European Law and the Law Reporting Council of Ireland, he served for three years as a member of the first Information Society Commission. He is a fellow of the Society of Advanced Legal Studies, (London), a visiting fellow and member of the adjunct faculty of law at UCD and a board member of the Irish Centre for European Law, TCD. Author of The Electronic Age: Telecommunication in Ireland, Dr Hall has contributed articles and chapters to various publications.
Billy Hawkes was appointed by the Government as Data Protection Commissioner in July 2005 for a 5-year term. Prior to his appointment, he worked as a civil servant in various government departments, most recently Finance, Enterprise, Trade & Employment and Foreign Affairs.
Karlin Lillington is a journalist and columnist with The Irish Times, covering the technology sector. She has been writing about data retention and digital privacy issues for 10 years, for The Irish Times as well as The Guardian and Wired News.
TJ McIntyre, BL is a lecturer in law in University College Dublin and Chairman of the civil liberties group Digital Rights Ireland. He has published in the area of computer crime and online civil rights. He is the author with Sinead McMullan of Criminal Law in Ireland, the second edition of which was published in 2005.
Tom O’Malley M.A. (NUI), LL.M. (Yale) is a Senior Lecturer in Law at NUI, Galway and a practising barrister. His publications include Sentencing Law and Practice (2nd edition, 2006); Sexual Offences: Law Policy and Punishment (1996); The Criminal Process: A Textbook and Principled Discretion: Sentencing without Guidelines (both forthcoming 2006). He has been a member of several committees and working groups on various aspects of law reform and is currently a member of a committee advising on the establishment of a computerised sentencing information system.
The Director, on behalf of the Centre, expresses his thanks to the chairmen, speakers and sponsor for their participation.
July 3rd, 2006