RTÉ News reports that Dr. Jerry Cowley, Independent TD for Mayo, is to ask the complaints referee to investigate apparent official tapping of his telephone:
The independent Mayo TD Jerry Cowley has called for an investigation to establish if his phone is being tapped by gardaí.
He said he had raised the matter with the Minister for Justice, Michael McDowell, and got what he described as a ‘less than satisfactory reply’.
He said his suspicions that his phone might be being tapped had been raised by ‘a series of unusual coincidences’.
But he declined to give any further details of these. He said: ‘I want to know for certain if my phone is being tapped’.
Deputy Cowley has been closely associated with the Shell to Sea campaign which opposes the current Corrib Gas pipeline plans in Co Mayo.
In a democracy it is particularly worrying if the Government is monitoring our communications with our elected representatives with the potential that this will be used to undermine the opposition for political purposes. In the United Kingdom, the Wilson Doctrine addresses these concerns by prohibiting the tapping of MPs’ (and Peers’) telephones. But that rule has no counterpart in Ireland.
March 29th, 2007
The Irish Independent reports that Fine Gael share our concern about accountability in the phone tapping system:
JUSTICE Minister Michael McDowell yesterday refused to reveal the number of phones taps he has authorised during his time in office.
Although bugged phone conversations cannot be used as evidence in court, they can be used by gardai to gather intelligence on suspects.
In response to a Dail question, Mr McDowell said it would be contrary to the public interest to reveal how many phone taps had been approved by his department, or what categories of people were being targeted.
But Fine Gael TD Paul McGrath raised concerns about the possible inappropriate use of phone taps without the public’sknowledge.
“Wouldn’t it be a surprise, or maybe not such a surprise, if it included journalists or politicians, a number of subversives or illegal immigrants? We’re not a police state. We should have more information.”
In Britain, the statistics on phone tapping are revealed annually by an eavesdropping watchdog, the Interception of Communications Commissioner.
There were 2,243 phone tap warrants issued there last year. This included 66 mistakes, in which security services were listening in to the wrong numbers.
Mr McGrath said he was very disappointed at the failure to provide basic information on the use of phone tapping here. “Surely the very least we’re entitled to know is the number of phone taps and whether this minister has increased or decreased them over the years. By covering up and not releasing some of the information I asked for, it leaves it open to suspicion,” he said.
He added: “From what I hear among journalists, there’s a real suspicion that a number of them have their phones tapped.”
The civil liberties group Digital Rights Ireland said that Mr McDowell’s reason for withholding the information was unacceptable.
“It’s been perfectly possible to do this in England in detail with no threat to the public interest or national security. So that justification just doesn’t hold water,” said chairman TJ McIntyre.
There was a designated judge who issued a report on the phone tapping each year, he said. “It’s literally a one line report in which he says he has reviewed the system, with no details and no indication of mistakes made or steps taken to correct them.”
There is also a complaints referee, Circuit Court Judge Carroll Moran, who people can contact.
“But the Department of Justice haven’t explained how people find out if their phone is being tapped. It makes a mockery of the whole system,” Mr McIntyre said.
The Department of Justice confirmed that Mr McDowell must personally approve all of the phone tapping applications, which are made to him by Garda Commissioner Noel Conroy and Defence Forces Chief of Staff Jim Sreenan.
But a spokesman said Mr McDowell would not be commenting further on his explanation that releasing the phone tapping statistics would be “contrary to the public interest”. He added that the statistics had not previously been released by the Department.
March 23rd, 2007
It’s been some time coming, but we’re glad to see the Labour Party shares our concern about data retention:
The Labour Party Spokesperson on Justice, Deputy Brendan Howlin TD, has called for a review of the operation of powers given to the Gardai under the 2005 Criminal Justice (Terrorist Offences) Act to access personal telephone records, following information given to the Sunday Times by the Data Protection Commissioner that 10,000 such requests had been made by the Garda authorities during 2006.
This measure was added on as a last minute amendment to the Bill by the Minister for Justice, Michael McDowell, when it was going through the Dail in 2005 and was never properly debated by the House. While there was acceptance that such a power might be necessary to fight international terrorism or organised crime, I do not believe that any member of the Oireachtas envisaged that the power would be used so often. This amounts to almost 30 requests for every single day in 2006.
Given the extensive use by the Gardai of what should be an exceptional power, it is hard to disagree with the conclusion of the Assistant Data Protection Commissioner, that ‘perfectly innocent people are now having their private records pored over’.
I strongly believe in the light of these disclosures and the concerns expressed by the Data Commissioner’s Office that there is now a need to urgently review the operation of the powers and to establish if we need to strengthen the protection available to the public against potential abuses. The 2005 Act allows for the public to make a complaint to a ‘Complaints Referee’ but the fact is that a person has no way of knowing whether or not their records have been accessed by the Gardai in order to make a complaint. The Act also provides that the High Court Judge designated under the 1993 Interception of Postal Packets and Telecommunications Messages (Regulation) Act to review the operation by the Gardai of telephone tapping would also review the new provisions in regard to requests for telephone records, but as far as I am aware no report has yet been published.
The Gardai are entitled to all reasonable powers to enable them to fight international terrorism and organised crime, but there have to be safeguards built in to ensure that these exceptional powers are not used except in the circumstances envisaged by the Oireachtas. The 10,000 requests lodged during 2006 that the balance intended by the Oireachtas has not been achieved.
February 26th, 2007
Peter Hustinx, European Data Protection Supervisor:
Terrorism and organised crime should not be used as excuses for passing laws which undermine people’s privacy and data protection rights … It is a misconception that protection of privacy and personal data holds back the fight against terrorism and organised crime … Good data protection actually goes hand in hand with legitimate crime fighting because it increases the quality of databases and at the same time makes sure that only the right people can access them.
September 21st, 2006
We are at the edge of Europe, but our legal action challenging mass surveillance has implications for the whole European Union. We are the only group bringing a legal challenge and we need your support. We need support on a number of fronts:
- We need you to spread the word. If you have a web site or blog tell your readers about mass surveillance and link to us.
- In particular, it is important that we get Europe-wide blogger and media coverage for this launch. If you can help with this please ask to be added to our press list. Email us at contact@digitalrights.ie.
- And of course we need money. We need to raise a significant amount of money to sustain the litigation. Every small contribution makes a big difference. Please make a contribution at http://www.digitalrights.ie/support, and please contact us if you know of someone willing to make a major contribution.
September 14th, 2006
We have now started our legal action against the Government challenging Irish and European laws on data retention. Here’s the full press release.
DIGITAL RIGHTS IRELAND CHALLENGES MASS SURVEILLANCE LAWS
Irish civil rights group Digital Rights Ireland (DRI) has started a High Court action against the Irish Government challenging new European and Irish laws requiring mass surveillance. DRI Chairman TJ McIntyre said:
These laws require telephone companies and internet service providers to spy on all customers, logging their movements, their telephone calls, their emails, and their internet access, and to store that information for up to three years. This information can then be accessed without any court order or other adequate safeguard. We believe that this is a breach of fundamental rights. We have written to the Government raising our concerns but, as they have failed to take any action, we are now forced to start legal proceedings.
Accordingly, we have now launched a legal challenge to the Irish government’s power to pass these laws. We say that it is contrary to the Irish Constitution as well as Irish and European Data Protection laws.
We also challenge the claim that the European Commission and Parliament had the power to enact the Data Retention Directive. We say that this kind of mass surveillance is a breach of Human Rights, as recognised in the European Convention on Human Rights and the EU Charter on Fundamental Rights which all EU member states have endorsed.
If we are successful, the effect will be to undermine Data Retention laws in all EU states, not just Ireland, and to overturn the Data Retention Directive. A ruling from the European Court of Justice that Data Retention is contrary to Human Rights will be binding on all member states, their courts and the EU institutions.
Attack on Private Life
He continued:
These mass surveillance laws are a direct, deliberate attack on our right to have a private life, without undue interference by the government. That right is underpinned in the laws of European countries and is also explicitly stated in Article 8 of the European Convention on Human Rights. The Article specifies that public authorities may only interfere with this right in narrowly defined circumstances.
The information will be collected and stored on everyone, regardless of whether you are a criminal, a policeman, a journalist, a judge, or an ordinary citizen. Once collected, this information is wide open to misappropriation and misuse. No evidence has been produced to suggest that data retention laws will do anything to stop terrorism or organized crime.
We accept, of course, that law-enforcement agencies should have access to some call data. But access must be proportionate. In particular, there should be clear evidence of a need to move beyond the six months of storage which is already used for billing purposes. Neither the European Commission nor the European police forces have made any case as to why they might require years of data to be retained.
Data Retention, as legislated for in Ireland and mandated by the Data Retention Directive is unjustified mass surveillance. The government is deliberately recording information about innocent citizens without cause.
Legal background
The action challenges the law on data retention contained in the Irish Criminal Justice (Terrorist Offences) Act, 2005 and the European Data Retention Directive passed in 2006. The action has been commenced in the High Court by McGarr solicitors on behalf of DRI and names as defendants the Minister for Communications, Marine and Natural Resources, the Minister for Justice, Equality and Law Reform, the Garda Commissioner, Ireland and the Attorney General. DRI will ask the Irish courts to refer the Directive to the European Court of Justice for a decision on whether it is valid.
International Support
Digital Rights Ireland is the only group bringing a challenge to these laws, but it is supported by many international privacy and civil rights groups. Danny O’Brien of the Electronic Frontier Foundation said:
The EU Data Retention Directive is an excessive invasion of the privacy and security of all Europeans. Mandatory recording and retention of European citizens’ telephone calls by telephone companies and their online behaviour by Internet Service Providers creates a precedent for mass surveillance and is likely to chill freedom of expression on political and social issues that are at the very core of a well-functioning democracy. Digital Rights Ireland’s legal challenge to the directive will help protect not only the fundamental rights of citizens of Europe, but also those of other countries tempted along the same path.
Other organisations supporting the action include Privacy International, the European Foundation for a Free Information Infrastructure, the Czech civil rights group Iuridicum Remedium, Digital Rights (Denmark), the Belgian Liga voor de Mensenrechten (“League for Human Rights”), Electronic Frontier Finland, the UK Open Rights Group, the Italian group, ALCEI (“Electronic Frontiers Italy”), the French IRIS, the Internet Society – Bulgaria, German groups netzwerk Neue Medien (“network New Media”) and FITUG (Förderverein Informationstechnik und Gesellschaft e.V.), and the Austrian groups VIBE!AT (“Austrian Association for Internet Users”) and Quintessenz.
Click here to see how you can support the action also.
September 14th, 2006
Yesterday’s Irish Times contained an editorial (subscription required) discussing data retention and supporting our case. We’ve taken the liberty of reproducing it here:
Data retention needs fine balance
How closely should a State monitor its citizens? Should it track every letter you send and receive? Should it fit you with a transmitter, broadcasting your location throughout the day? Should the library inform it of the books and magazines you read, and shops pass along details of items you browse and buy? If you contact the Samaritans, an Aids hotline, an alcoholism treatment programme, should the Garda and State be informed?
Most people would answer ‘No’. Ongoing, unwarranted surveillance of our daily activities is contrary to the very notion of living in a free and open democracy. Yet Ireland has in place a data retention law that permits the electronic equivalent of such surveillance, with plans to introduce an expansion on what can be gathered, held and examined, even for the most trivial misdemeanour.
At the moment, details – but not the content – of every phone, mobile and fax call is stored for three years. This information includes a daily record of the physical location of mobile phone users and data on every number called. The Minister for Justice promised that Garda access to call data would be tightly controlled but access restrictions were never imposed, a situation repeatedly criticised by Data Protection Commissioner Billy Hawkes. And an incoming – and controversial – EU directive will require the storage of similar information relating to e-mails sent and received, and web pages viewed.
Perhaps because such legislation deals with electronic data, and the surveillance happens unseen in the background, it has not provoked significant public debate. But electronic monitoring is potentially far more invasive than the “real world” equivalents noted above, as it carries greater possibilities for abuse and misuse, ranging from blackmail to faulty “profiling” to identity theft. Such large-scale surveillance reverses many tenets of democratic society.
It is legitimate, of course, that law-enforcement agencies should have access to some call data. Such information has helped in several high-profile prosecutions, including the Omagh bombing case. But access must be proportional to the threat posed. In particular, there should be clear evidence of a need to move beyond the six months of storage for these data already mandated for billing purposes. Neither the Government nor Garda has come up with a case in which they needed call data from earlier than this six-month framework.
Privacy watchdog Digital Rights Ireland has launched a legal challenge on constitutional and human rights grounds in an attempt to halt the gathering and long-term storage of such data. The case is likely to make its way to the Supreme Court, and from there to the EU courts, as a challenge to the EU directive. Given the breadth of the Irish data retention regime, surpassing that of most other democracies, it is appropriate that it should be tested in this manner. It is important also that the issues involved be subject to proper, if belated, public debate.
August 8th, 2006
We’ve achieved very good publicity since we announced our Data Retention case with front page stories in the Irish Times and the Irish Examiner, and coverage in the Irish Independent and Silicon Republic. We’ve also had radio coverage on Today FM (Matt Cooper), Newstalk FM (Eamon Dunphy), Radio 1 (Tom McGurk) and on local radio via Independent Network News.
August 6th, 2006
The Irish Times reports that the US government is engaged in illegal monitoring of money transfers by Irish citizens:
The personal data of thousands of Irish citizens that have sent or received money transfers to and from the US has been covertly logged by US anti-terrorist agencies.
The Government did not know about the monitoring scheme, but several EU central banks were informed about the programme, which was introduced after the terrorist attacks on September 11th 2001. Under the scheme the CIA can sift through millions of international banking transactions to try to identify potential terrorist financing. [...]
It has emerged that several central banks across Europe knew that the Society for Worldwide Interbank Financial Telecommunications (Swift) has been providing infomation to the US Authorities. Some did not inform their own governments. [...]
As 77 financial institutions in the Republic use the Swift system, transactions made by thousands of Irish citizens are likely to have been screened by the US authorities. AIB, Bank of Ireland, EBS Building Society, National Irish Bank all use Swift, as well as a host of financial institutions based in the Irish Financial Services Centre. [...]
A spokesman for the Irish Central Bank yesterday refused to confirm or deny that it knew of the covert monitoring by the US authorities. A spokesman for the Department of Finance said the Government had not been informed of the monitoring.
There is no legal basis for this information to be given to the US, no judicial authorisation, and no control over what use is made of the information. The scale of the transfers – involving millions of bank records – makes it clear that this is a fishing expedition rather than a specific investigation. And this is ongoing – the US government has made it clear that it intends to continue with this operation.
What can we do about it? Privacy International has already launched a campaign against this scheme. They’ve made complaints to all the data protection / privacy commissioners of the countries affected, including Ireland. But this complaint would carry more weight if it was supported by individuals who were affected. If you’ve transferred money via your bank to the US since 2002 then we’d suggest you contact the Data Protection Commissioner. Click here to send a prepared email – you need only fill in your name and [optional] address. A copy of the email will be bcc’d to us so we can see how many complaints are made – if you don’t want to notify us, please delete the bcc field before sending.
We also need to ensure that our political representatives take this seriously. Click here to send a prepared email to the Minister for Finance – again you need only fill in your name and [optional] address. A copy of the email will be bcc’d to us so we can see how many complaints are made – as before, if you don’t want to notify us, please delete the bcc field.
June 29th, 2006
Last Tuesday’s Evening Herald had a curious front page story about the Afghan hunger strikers. Entitled “Truth about Taliban hunger strike” it read:
Exclusive: Sinister Taliban rebels directed Dublin sit-in protest from Afghanistan.
The hunger strikers inside St. Patrick’s Cathedral were being directed from Afghanistan, gardai believe.
Sources have told the Evening Herald that some of the 41 protestors maintained close mobile phone contact with “outsiders” in Afghanistan.
It is thought that these advisers were senior Taliban figures and officers have identified a number of former active Taliban fighters amond the hunger strikers.
A source said: “There was an almost constant phone link to advisers in Afghanistan and there is no doubt that these protestors were pawns that were being directed from home.”
“They were seeking regular direction on what they should do and there was no doubt that a Mr Big was in charge.”
This story suggests that Gardaí or others having access to confidential mobile phone records are leaking them to the press, confirming our previous warnings that data retention would be abused. The legislation makes it clear that information should be accessed only for the “prevention, detection, investigation or prosecution of crime” – it’s silent on the question of advancing a political agenda by media leaks. We’ve written to the Data Protection Commissioner asking him to investigate this apparent abuse of the legislation.
May 25th, 2006