July 29th, 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.