Last week the Cabinet approved the heads of a Surveillance Bill which, if enacted, will allow Gardaí to break into private property to place covert video cameras and audio bugs, and to use evidence gathered in that way in criminal prosecutions. The Bill – which was already on the legislative programme but was rushed forward after the murder in Limerick of Shane Geoghegan – is intended to place existing Garda practices on a statutory basis in line with Ireland’s obligations under the European Convention on Human Rights.
At the moment, due to the lack of statutory controls, material gathered in this way (such as transcripts of conversations) can be used for intelligence purposes but would not be admissible in criminal trials. The Bill aims to remedy this by providing that Gardaí will have to obtain authorisation from a District Court judge before this type of surveillance can be carried out (except in cases of exceptional urgency) and that a designated judge of the High Court will keep the overall operation of the system under review. In addition, these methods can only be used in respect of crimes carrying a possible sentence of at least five years imprisonment and where the surveillance is, in all the circumstances, proportionate.
The Bill promises to regularise the law in this area and to that extent must be welcomed. It is unfortunate, however, that it took a high profile and tragic murder before this was given priority. As far back as 1996 the Law Reform Commission in a Consultation Paper identified a need for reform and in a 1998 Report it recommended that there should be a legal basis for Garda surveillance of this type. Successive Ministers for Justice have, however, largely ignored this recommendation. (The most remarkable example being in 2006 when the Privacy Bill introduced by then Minister for Justice Michael McDowell targeted surveillance by the media – but entirely excluded Garda surveillance from its scope.) In light of over a decade of government inactivity, the Bill is long overdue.
The timing of the Bill aside, its provisions generally represent a substantial step forward. It has clearly been influenced by the constitutional guarantee of the inviolability of the dwelling and the safeguards which it provides are more robust than those recommended by the Law Reform Commission. It introduces for the first time in Irish law the principle that judicial approval should be required before surveillance is carried out. Unlike other forms of surveillance such as data retention – which currently can be used in respect of even the most minor crimes – the Bill is limited to genuinely serious offences and also introduces a requirement that the surveillance must be proportionate having regard to the impact on the rights of innocent third parties.
There are of course some aspects of the Bill which could be improved. For example, the procedure to deal with cases of exceptional urgency is too lax. Under the Bill as it stands those cases would bypass the judicial process entirely, so that surveillance could take place for up to 14 days without any authorisation. There must be a question mark as to whether this provision would be constitutional if it was used to break into and bug a dwelling. Instead, it would be preferable to deal with cases of urgency by permitting Gardaí to commence surveillance without a judicial authorisation but then requiring that an application be made to the District Court for permission to continue the surveillance.
However, while the Bill is generally good as far as it goes, there is a strong argument to be made that it doesn’t go nearly far enough.
Despite its broad title, it addresses only one very narrow area – the covert surveillance of locations by devices which are physically planted in those locations. Many other forms of surveillance – such as the use of GPS devices to track the position of cars, the use of long range cameras and microphones to monitor locations from a distance and live monitoring of internet activity – will still be entirely unregulated. As a result there will continue to be doubt as to whether Gardaí have the power to use these types of surveillance and as to whether the resulting evidence can be used in criminal prosecutions.
Meanwhile, although there is some legislation regulating other forms of surveillance such as the interception of communications, data retention and Garda use of CCTV, that legislation has developed on an ad hoc and reactive basis with few consistent principles applying to its use or oversight. Much of it is also out of date, most notably the 1993 interception of communications legislation which due to technological changes no longer adequately protects email and other internet communications.
Considered as a whole, therefore, the wider Irish law is inadequate. Given that many of these issues were flagged by the Law Reform Commission in 1998, it is hard to see any justification for the failure to address them to date. Although this Bill does provide for some improvements, it is at best a piecemeal response which will not address similar problems with other forms of surveillance. It is clear that the time has come for comprehensive reform of the overall law relating to surveillance. This Bill is a good first step towards that reform. But it is only a first step, and it would be regrettable if the government were to continue to ignore this area until forced to act by another highly visible crime.
November 28th, 2008
The Irish Times is reporting that the Joint Committee on European Scrutiny (a cross party committee which examines proposed EU legislation) has published a report which is highly critical of European proposals on passenger records.
The draft Framework Decision on the Use of Passenger Name Record (PNR) for Law Enforcement is an astonishing proposal which, if passed, would establish giant databases tracking the travel of every individual, logging details of every flight they make and keeping that information for 13 years. That information could then be accessed and shared with other countries without any individual suspicion, much less any form of warrant or prior permission. The proposal envisages using this information for “profiling” of all passengers. As originally proposed, the database would apply only to international flights (entering or leaving the EU) but some states are now pushing to extend this to include all flights within the EU while the UK is taking this further still and is seeking to create a database of all ferry and rail traffic within the EU.
This proposal has already been the subject of criticism across Europe from, for example, the European Data Protection Supervisor. In a presentation to the Joint Committee the Data Protection Commissioner clearly explained why the proposal is unacceptable:
We all support reasonable and proportionate measures to counter violence perpetrated against innocent people, but such measures should represent a proper balance between the need to combat such illegality and the rights of the innocent majority to go about their daily lives without undue interference by the State. In my opinion, and that of my EU colleagues, the Commission proposal fails this test. The proposal involves an obligation on air carriers to transmit to a state authority, called a “passenger information unit”, the PNR information that the passenger has provided to the air carrier in respect of any journey by air into or out of the European Union. The information typically includes contact details, such as address, phone number and e-mail, as well as payment information, such as credit card details. Under the proposal, the information has to be retained by the passenger information unit for a total of 13 years.
Such information is given by a passenger for the purpose of the provision of a service, namely air travel. The Commission proposal is that this information should be transmitted to state authorities for a totally different purpose, the combating of what is described as terrorism and organised crime. It is a basic data protection principle that information collected for one purpose should not be used for another purpose and should be deleted when no longer required for the purpose for which it was collected. The Commission proposal offends against this basic principle. Under the proposal, air carriers will have no choice but to hand over a complete record of an individual’s movements in and out of the European Union to a state entity that will retain it for 13 years, and not only a record of travel, but also of contact and payment information.
Many regular travellers would have difficulty recalling where they had travelled to, even in the past year. With this proposal, the state will have a detailed record of all such travel in and out of the European Union, and for a period going back 13 years. Therefore, whether it is a business trip to Singapore, a shopping trip to New York or a holiday in Morocco, the state will have full details. Can this invasion of individual privacy be considered a proportionate response to threats from the small number who may be tempted to engage in terrorism or organised crime?
One must also have concern for the ability of the state to protect the confidentiality of such information. Recent cases investigated by my office have, unfortunately, demonstrated that deliberate or inadvertent leaking or misuse of such information is a significant risk. Experience in other EU countries is no different…
There is little hard evidence of the actual usefulness of PNR passenger data in combating terrorism or organised crime. All we are presented with is general comments that such information is useful, with a small number of examples. There is even less evidence of the additional utility of PNR data over the more reliable API data that is already being collected. The result is that a key test under European law — that of proportionality — does not seem to be met. Even if one were to accept the case presented for this proposal — I do not — the protection provided for the innocent majority who have nothing to do with terrorism or organised crime is vague and inadequate. These deficiencies are spelled out in the written opinion my EU colleagues have already delivered and which has been provided to the committee.
If this proposal is implemented, we will have taken a further step to what has been called the surveillance society, where our day-to-day activities are constantly monitored and our private space is more and more restricted. We already have a situation, under data retention law, where the details of who we communicate with electronically is compulsorily stored, in case it would be useful for the investigation of crime. With this proposal, our international travel movements will be monitored by the State for the same reason. Can it only be a matter of time before this is extended to all of our movements? (Emphasis added)
The Joint Committee has now accepted these points (and also pointed out that – incredibly – neither Ryanair nor EasyJet were consulted in relation to the proposal).
What can you do about this? The responsible Irish official is the Minister for Justice. You might like to let him know that your privacy is important, and that the proposals (which Ireland has supported) are unacceptable. Ask him why he has ignored the concerns raised by the Data Protection Commissioner and proceeded with a measure based on “little evidence” with “vague and inadequate protections” for your personal information. Ask him whether he plans to ignore the concerns raised by our democratic representatives in the Joint Oireachtas Committee. Contact details? Email: minister@justice.ie, Phone: 01 602-8202 (ask for the Minister’s Office), Fax: 01 661-5461, Snail Mail: 94 St. Stephen’s Green, Dublin 2. And of course you should cc your local TDs (details here) and let them know that this issue is important to you in deciding how you will vote.
November 17th, 2008