You might have noticed Karlin Lillington’s story in the Irish Times today about the Department of Justice’s new proposals on data retention. To make a long story short, it turns out that the Attorney General was not impressed with its remarkable plans to change the law to extend surveillance on every citizen in Ireland via a ministerial order – sidestepping the need for the Oireachtas to review these changes. Having been rebuffed on this issue, the Department of Justice has now decided to proceed (as it should have done to begin with) via primary legislation.
An improvement for transparency? It would be, if Justice lived up to their past promises to hold an open consultation process. But they haven’t. Their website still claims that the Directive will be transposed via a statutory instrument – notwithstanding the fact that they have prepared a draft Bill which they have been circulating to industry groups. Nor are they willing to show the draft Bill to the public – consultation for Justice appears to mean a secret process controlled by them and excluding citizens.
We’ve contacted Justice for their comments. In the meantime, we think that the public should have the same right to see the draft Bill as industry insiders, so here’s a copy of what we understand is the latest draft: COMMUNICATIONS (RETENTION OF DATA) BILL 2009
Karlin Lillington has an interesting story in today’s Irish Times on recent UK developments in surveillance and what they might mean for Ireland. Here’s an excerpt:
NET RESULTS: When it comes to abuse of privacy, where Britain goes, Ireland tends to follow. That’s why we should be worried – very worried – about developments across the Irish Sea that emerged as the year rolled over into 2009, writes Karlin Lillington.
First came a New Year’s Eve story in the Guardian that home secretary Jacqui Smith will propose the creation of a single giant communications database and the option of outsourcing the storage of all the personal details held under the UK’s data retention regime to a private firm.
That means potentially that a single repository – a massive, national communications database – would hold all the details about, though not the content of, everyone’s e-mails, phone calls, faxes, text messages and internet use.
The same array of data is retained in Ireland as well, though at the moment, as is the case in Britain, data is retained by the communications providers, not in a central database.
Gathering such a spread of private information into a single database would create a “hellhouse” of personal private data that would not only be vulnerable to security breaches on a massive scale but would prove too great a temptation for law enforcement, according to Britain’s former director of public prosecutions, Sir Ken McDonald.
McDonald was scathing in his criticism of the idea. “Authorisations for access might be written into statute,” he told the Guardian. “But none of this means anything. All history tells us that assurances like these are worthless in the long run. In the first security crisis, the locks would loosen.”
While “security” would be cited as the main impetus for such a database, “the notion of total security is a paranoid fantasy that would destroy everything that makes living worthwhile” and bring an “ugly future”, he said.
One of the areas she points out – remote searches or the ability of the police to remotely hack into your computer to find evidence or monitor your activity – will certainly be one of the big issues of 2009. While Irish law doesn’t currently deal with this issue, there are moves at EU level to encourage (and possibly eventually require) all member states to allow remote searches. This becomes more worrying when combined with a growing law enforcement desire to be able to conduct “remote cross border searches” – that is, for the police in country A to be able to hack into a computer in country B. This strategy – also known as “chasing bits across borders” presents its own problems for privacy and especially accountability.
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.
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.
As I near my conclusion, let me, in my final public speech as DPP, repeat my call for level headedness and for legislative restraint in an age of dangerous movements.
We need to take very great care not to fall into a way of life in which freedom’s back is broken by the relentless pressure of a security State.
Over the last thirty years technology has given each of us, as individual citizens, enormous gifts of access to information and knowledge. Sometimes it seems as if everything is at our fingertips and this has made our lives immeasurably richer.
But technology also gives the State enormous powers of access to knowledge and information about each one of us. And the ability to collect and store it at will. Every second of every day, in everything we do.
Of course modern technology is of critical importance to the struggle against serious crime.
Used wisely, it can protect us.
But we need to understand that it is in the nature of State power that decisions taken in the next few months and years about how the State may use these powers, and to what extent, are likely to be irreversible. They will be with us forever. And they in turn will be built upon.
So we should take very great care to imagine the world we are creating before we build it. We might end up living with something we can’t bear.
The Advocate General of the European Court of Justice has just given his Opinion (summary, PDF) on the Irish Government’s challenge and has recommended to the Court that the challenge should be rejected, holding that the Data Retention Directive was correctly dealt with as an internal market measure rather than a criminal justice measure (which would have required unanimity to pass). Opinions of the Advocate General aren’t binding but are generally followed by the Court, making it more likely that the Government’s challenge will now fail.
It’s important to point out, though, that this ruling only relates to the procedural way in which the Directive was passed. It doesn’t affect our case that the Directive breaches fundamental principles of human rights, and we still await a decision from the High Court referring these issues to the European Court of Justice.
Full text of the Advocate General’s opinion available here.
The German Working Group against Data Retention (Arbeitskreis Vorratsdatenspeicherung) is also bringing a legal challenge to data retention and has put out a press release on the Opinion.
What’s the significance of the State’s challenge? Here’s what we said about it before:
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.
Obviously we hope that the Government’s challenge will succeed in invalidating the Directive. Whatever the outcome of their case, however, our own challenge to data retention – where we raise these privacy issues about Irish law as well as the Directive – will continue.
(Thanks to Joris van Hoboken for pointing out that the Opinion had been timetabled.)
The Irish Times published an opinion piece today from us on data retention. A subscription is required to read it at that link, so here’s the full text:
Violations only made worse by new plans for data retention
The Government is planning an alarming expansion of its surveillance of citizens, writes TJ McIntyre .
SUPPOSE THAT someone was monitoring you every day, writing down your movements, making a note of everyone you talked to, copying the name and address on every letter you posted, and then storing that information for three years. Now suppose that every person in the country was under similar surveillance.
While this might seem like science fiction, since a secret ministerial order of 2002 the Government has required telephone companies to do just that. They are required to track the whereabouts of all users via their mobile phones, to log details (but not the content) of every telephone call made and every text message sent and to store that information for three years.
The Department of Justice now proposes to extend this to the internet, by requiring internet service providers to monitor the internet use of every person in Ireland, recording names, details of every e-mail or instant message sent and every time a user logs on, and to store that information for 12 months.
Moreover, they plan to do this in a way which will limit democratic scrutiny, by using a statutory instrument and not a Bill which would be examined by the Dáil and Seanad.
(Ironically, these proposals were revealed on the same day that thousands of Bank of Ireland customers learned that their confidential data had been stolen.)
This system has been given the bureaucratic and innocuous-sounding name “data retention”. A more apt term, however, is “dataveillance” – surveillance through the use of databases. Unlike traditional targeted surveillance, it involves the gathering of information on all citizens – judge, journalist and jailbird alike – creating a digital dossier of their movements and communications, without any requirement for judicial authorisation or even police suspicion.
What protections are in place to limit the use of this information? The former minister for justice, Michael McDowell, promised that access to these databases would be an extraordinary measure, used to deal with serious crime and terrorism.
However, such safeguards were never implemented. Under current law gardaí can access these databases without a warrant, in respect of any crime (or even possible future crime), however trivial, and in respect of any person (not merely suspects). The result, according to the Data Protection Commissioner, is that more than 10,000 requests are made for this information every year – more than 300 per day.
European law should have changed this, by restricting access to cases of serious crime only. Generally under Irish law a serious offence is one which carries a possible prison sentence of five years or more. However, the current Department of Justice proposals cynically negate this safeguard by redefining serious offences for the purpose of data retention to mean offences which have a possible sentence of six months’ imprisonment.
This will include such crimes as failure to move on when asked to do so by a garda.
There is also a likelihood that others will abuse or simply lose these records. In Germany it was revealed recently that Deutsche Telekom had been using telephone databases to spy on journalists who wrote unfavourably about the company. In the United Kingdom government departments have allowed confidential data on many millions of individuals to be compromised.
Here in Ireland officials in the Department of Social Welfare have been found by the Data Protection Commissioner to be engaged in the systematic leaking and selling of personal information from government databases. There is no reason to think that this information will be treated any differently.
Information gained from telephone and internet records can be valuable in the investigation and prosecution of crime – but there are other ways of ensuring that police can have access to this data without jeopardising the right to privacy.
In 2001 Ireland signed the Council of Europe Convention on Cybercrime, which achieved international agreement on a more proportionate “data preservation” system, which would enable police to mount surveillance and preserve evidence but would avoid blanket surveillance of all citizens at all times.
This system would still have provided for the use of this information in, for example, investigating the Omagh bombing.
But without any explanation, the Government has failed to implement the convention, jumping straight to the more intrusive option of data retention without first testing data preservation.
Privacy is a fundamental right, guaranteed under Irish, European and international law. Being able to go about our everyday business without systematic state scrutiny is an essential part of a democratic society. Data retention is something entirely new – it provides for pre-emptive surveillance of the entire population on the basis that some of them might at some stage commit some crime and that this information might then be of assistance.
In effect, it treats everyone as potentially guilty and as such reverses the presumption of innocence. Such ongoing monitoring of the entire population is remarkable in a democracy and is so excessive and disproportionate as to violate the right to privacy. No evidence has been put forward to show that it is necessary or that less intrusive alternatives would not suffice.
Digital Rights Ireland has brought a High Court challenge to Irish and European data retention laws, which will ultimately determine whether surveillance of all citizens can be compatible with the Constitution and the European Convention on Human Rights.
In the meantime, the Department of Justice proposals to extend data retention to the internet should at the very least be the subject of primary legislation, allowing for a full public discussion of these issues and democratic scrutiny by the Oireachtas.
TJ McIntyre is a solicitor, lecturer in law in UCD and chairman of Digital Rights Ireland
Given the short timeframe for putting this legislation into action, the industry – ie ISPs – should know the score. They are charged with the responsibility of storing this vast bank of data on the Irish citizen, but frustratingly they are still not quite sure of their role in the process.
“We, as ISPs, do not have any difficulty with the objective of fighting serious crime but what we need are clear instructions on the expectations of governments across Europe as to what exactly it is we have to retain and when,” says Durrant.
Shane Deasy, managing director for wireless internet provider BitBuzz, while willing and able to comply with the new legislation, echoes Durrant’s sentiment: “There is a grey area – details we have yet to get answers to.
“The industry has met with the Department of Justice and has had several discussions on this forthcoming legislation but to my knowledge the industry has not yet been given information on exactly what data they are required to store and for how long.
“It may require a lot more storage on the part of the ISPs but at the moment we simply don’t know exactly what we are going to be asked to retain.”
Such is the confusion that Google has recently voiced its concerns on its Public Policy blog, stating that the approach taken by Justice may have the effect of damaging the Irish internet industry:
Ireland looks set to be amongst the first countries to transpose the directive. Concerns have been expressed that sufficient time may not be available for a full debate to discuss the very complex issues involved. There is also a real risk that a rushed transposition process could produce legislation which negatively impacts on consumer privacy and is harmful to the internet and telecomms sector. Our view is that it is vital that the reasonable concerns of privacy advocates and industry are taken into account. Google is going to take advantage of the current window of opportunity to get our views across, and we hope that other interested parties will do likewise.
So what will it take before the Department of Justice is prepared to engage in real consultation?
This year, the single most important thing you could do is to help stop data retention in Ireland. What exactly is data retention? TJ wrote this explanation of the issues for the Irish Examiner:
How would you feel if someone followed you every day, writing down your movements, making a note of everyone you talked to, jotting down the address of every letter you post, and then storing that information for three years? What would you think if that system of surveillance was extended to every single person in the country? While this might sound like the stuff of science fiction, since 2002 the Government has required telephone companies to track the movements of all their users, to log details of every telephone call made and every text message sent and to store that information for three years. The Department of Justice now proposes to extend this further, to require ISPs to monitor everyone’s internet use, including details of every email or instant message we send, and every time we log on or off, and to store that information for up to two years. What’s more, it intends to do this by the stroke of a ministerial pen, with no debate before the Dáil or the Seanad.
The rather dull name for this surveillance is “data retention”. But it might be more informative to talk of “digital footprints”. As technology comes to be more and more part of our everyday lives, we leave a trail of digital footprints recording almost everything we do. Activities which once would have been private (posting a letter) may now leave a record (sending an email). Data retention laws – by storing these digital footprints – mean that the rights to privacy and freedom of expression we take for granted in the offline world might be lost in the digital age.
Since the Department of Justice admitted these plans there has been a surge of interest. The primary question has been what can individuals do to stop this.
The most potent assistance anyone can give is to write a letter to the Ministers responsible, as well as to their local TDs.
If they’re in government, ask them why Ireland is introducing data retention so urgently. And don’t accept “Because European law requires it” as an answer. There is an EU Directive requiring data retention. But it is being challenged by multiple court cases. One is being taken by the Irish State itself at the European Court of Justice. One is being taken by DRI in the High Court. And one is being taken by 30,000 signatories objecting to the German Government’s implementation of the Directive. There is no reason why our Government should implement the Directive before these court cases have been heard – especially given that the Government itself agrees that the Directive is invalid.
Member states of the EU had the right to seek an 18 month derogation from having to transpose this law. Ask the Ministers and your public representatives why Ireland did not avail of this breathing period.
In addition, you might ask the Minister for Communications to put a figure on how much the additional costs of collecting, storaging and accessing of this data will add to the price of broadband for the average consumer.
Brian Lenihan TD is the Minister for Justice. It is the Department of Justice who have responsibility for the introduction of data retention in Ireland. His email is: info@justice.ie.
Eamon Ryan TD is the Minister for Communications. The Minister for Communications is responsible for the regulation of Internet Service Providers who will need to implement Government policy in this area. His email is: minister.ryan@dcmnr.gov.ie.
Your local TD (if they use email) will usually have the address: firstname.surname@oireachtas.ie. You can find full contact details for your local TD here.
Government proposals to introduce surveillance of all internet users are unacceptable. The proposed law will require Internet Service Providers (ISPs) to log details of every email, every instant message or chat message, and every time users log on or log off, and to store that information for up to 18 months. This information will then be available without any court order or warrant. These proposals, implementing European law, are being drafted without public consultation and would be implemented by a statutory instrument. There will be no scrutiny by the Oireachtas.
It is incredible that the Government proposes to introduce a law which would require every Internet user to be monitored without any warrant or prior judicial approval, without any public consultation and without any debate or vote in the Oireachtas. A law of this gravity should not be made by stealth.
The Department of Justice appears to be relying on the “urgency” of the matter to justify bypassing the Dail and Seanad. But the European law being implemented was passed in February 2006. The Department has had two years to introduce a Bill and it cannot rely on its own delay to justify sidelining democratic scrutiny.
In any case, it is inappropriate to implement this law whilst it is under court challenge. The Irish government itself has challenged the validity of the law before the European Court of Justice. Digital Rights Ireland has also brought a High Court action challenging the European law. These proposals will effectively pre-empt the judgment of the courts.
