Posts filed under 'Privacy - General'
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.
January 9th, 2009
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 outgoing head of the Crown Prosecution Service and DPP for England and Wales, Sir Ken MacDonald QC, has used his retirement speech to warn against UK government proposals to expand data retention:
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.
October 21st, 2008
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.
October 14th, 2008
The agenda of the European Court of Justice has just listed Tuesday, October 14 for the Advocate General’s opinion on the State’s challenge to the Data Retention Directive. This won’t be a final decision – the Advocate General gives an opinion which is merely advisory and the court is not bound by it. In most cases, however, the court will follow the broad approach of the Advocate General.
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.)
October 3rd, 2008
There’s some good news and some not-so-good news in the Irish Times today on how the government is responding to its ongoing problems with losing personal data.
First, the not-so-good news. In response to a parliamentary question from Labour leader Ruairí Quinn, it emerged that the rate of loss of electronic devices is increasing to approximately one per week. (A figure which includes e.g. laptops, desktops, usb keys, Blackberries, etc.) Worse, only three government departments have fully encrypted their portable devices and although the majority are in the process of doing this, two departments (Communication and Education and Science) have not done so at all.
So what’s the good news? After these figures emerged, the Minister for Justice indicated that he was considering introducing mandatory reporting where personal data is lost, which, according to the Irish Times, would extend to “all state agencies, banks and other entities”. We’ve been calling for mandatory reporting of data loss for some time now, something which has been endorsed by amongst others the European Data Protection Supervisor and the Irish Times and it’s good to see the Minister (albeit belatedly) acknowledge the need for change.
The devil is, however, in the details and (while it’s dangerous to read too much into a relatively short piece) there are indications in the story that what the Minister is considering is too narrow.
First, the story talks about reporting “when an electronic device containing information on members of the public is lost or stolen”. This reflects a rather old fashioned view of data being embodied in a particular tangible form – a view which is no longer valid. It makes little sense to say that there should be notification when a USB key is lost but not when an online database is compromised.
Secondly, the focus seems to be on data which goes “missing”. This might fit the traditional example of the laptop left on the bus – but excludes situation where a corrupt insider deliberately misuses data. A good example is the recent scandal where mortgage brokers illegally passed on details of buyer’s finances to estate agents and auctioneers. Such abuses are often more serious than inadvertent loss of data, and any duty to report should also include deliberate and illegal disclosures of data.
Thirdly, the duty to report would be to the Data Protection Commissioner, with the public being informed “in major cases”. This must not mean, however, that the individuals whose data is lost would only be informed “in major cases”. The risk to your finances if your details are lost is just as great whether or not you are the only victim. It would be little consolation to learn that you were not informed and given a chance e.g. to cancel your credit cards because you were the victim of a “minor breach” only.
These concerns aside, we welcome the Minister’s decision and look forward to seeing detailed proposals soon.
October 2nd, 2008
This is a letter which the Department of Justice wrote in July 2006 indicating that they would consult us before drafting any measures implementing the Data Retention Directive. 18 months later we still haven’t heard anything concrete from them, despite reports that they plan to put laws in place within the next month. Equally in the dark are the ISPs and others in the internet industry who will face the technical challenges and cost of implementation:
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?
February 28th, 2008
Professor Robert Clark is a leading Irish expert on privacy and the law. Here’s what he had to say in the Independent about the Government’s handling of personal privacy:
Big Brother Philosophy Threatens Public’s Privacy
Do the Irish Government and state agencies — health, prison, law enforcement, semi-state bodies for example — have a legal obligation to keep your personal information private? The answer is a resounding “yes”.
But this does not mean that the law will necessarily be observed — bad things happen. Experience shows that human errors will greatly facilitate personal information misuse. Failure to keep computer passwords confidential, for instance, are estimated to be a major source of data security lapses.
Threats are often internal, rather than external. Examples that come to mind include a case in Belfast some years ago when an unmarried mother-to-be applied at her dole office for maternity benefit.
She was dreading telling her mother of the pregnancy but a nosey neighbour who worked in the office found out about the inquiry and told the entire neighbourhood. The welfare agency was held in breach of its duty to keep information in confidence.
A similar event occurred in Kerry last year when the gardai had to pay damages when information about a suspect found its way into the public domain by way of a garda leak.
The fact is that the State is likely to have access to personal information of the most sensitive kind — medical and health data, criminal records, religion, etc — and it is through data protection law that citizens draw the most protection.
While the Office of the Data Protection Commissioner is better resourced now, the complexity of finding meaningful solutions that face the commissioner in the internet age cannot be overestimated.
Privacy and data protection all too often lose out when confronted by pressure for more police powers or greater administrative convenience. The level of scrutiny by the Oireachtas was negligible. Successive Data Protection Commissioners have complained about this Big Brother philosophy but to little effect.
The practical point is this: the more public servants who can access the data, the more likely it is that something will go wrong.
The lesson to be taken from the UK child benefit disk debacle, in which two disks holding personal data about millions of people went missing, is that too many junior staff were able to access and copy too much information about too many citizens, in breach of internal rules.
The rules and legal position are clear — it is human error that accounts for most data breaches. Threats from hackers are often regarded as external threats but often the person who alters websites and files is a disgruntled employee or ex-employee who is out for revenge or wants to access information about others. Case law in relation to employee hackers shows that the employer is entitled to sack someone straying into personnel files of co-workers.
Where the threat is external, as in cases of identity theft, denial of service attacks, phishing, for example, our legislation appears to be less satisfactory.
Hacking was criminalised as a very minor offence back in 1991 but we have yet to see a review of the law relating to computer and technology misuse in the light of these more damaging developments.
To the extent that our lawmakers are not keeping information misuse laws up to date, it can be said that Sean and Maura Public are not being protected by the State.
A cynic might say that internet crimes and information theft are difficult to detect and investigate but this, while true, is not an excuse for legislative complacency.
Prof Robert Clark is a member of the Internet Advisory Board and is the author of ‘Data Protection Law in Ireland’
February 8th, 2008
Today’s Irish Independent covers the revelation (via Ruari Quinn’s Dáil questions) that over 80 government laptops – together with other items such as USB keys and Blackberries – have been lost or stolen over the last five years. It appears from the responses to those questions that the laptops weren’t encrypted, but it’s not fully clear what was on each device. We’ve pointed out before that the State’s security standards for personal data appear to be extremely lax – suggesting that it’s essentially a matter of luck that we haven’t had private files compromised on as large a scale as the recent English loss of data on 25 million individuals. The Data Protection Commissioner is already investigating the lax culture within some Government Departments where snooping or sale of personal information is common – but past experience suggests that real change won’t happen unless there is public pressure for it.
So what can you do to protect the private information the State (Revenue, Social Welfare, HSE, Passport Office, local authority, etc.) hold about you? We’d suggest you start making some noise. Start by complaining to your local TDs – if they use email it will usually have the address: firstname.surname@oireachtas.ie. You can find full contact details for your local TDs here. Let them know that personal privacy is an important issue for you. Ask them why the State has been so careless with our private information that the Data Protection Commissioner has said that he has warned of these risks for years, and has said that the State needs “a wake up call”. Ask them what they plan to do about it. And of course you can ask them why, in light of this carelessness, they should be trusted to bring in data retention.
February 8th, 2008
Ireland continues to suffer from a systemic failure to protect privacy, according to the new report of watchdog Privacy International on Leading surveillance societies in the EU and the World 2007.
Their 2007 Report is a comprehensive document based on a survey of 47 countries and consultation with over 200 experts worldwide. Countries are assessed based on their privacy record and laws in relation to areas such as identity cards, biometrics, workplace surveillance and democratic safeguards. Despite having a generally good track record on privacy in many areas, Ireland overall receives the third lowest grade – systemic failure to protect privacy – based largely on Ireland’s excessive data retention laws, the government’s failure to protect privacy at EU level, excessive use of PPS numbers, and the planned introduction of automatic number plate recognition without adequate safeguards.
We were privileged to be able to work with Privacy International in drawing up their national report on Ireland, and we believe that it is unacceptable that our Government should continue to undermine the right to privacy in this way. If you agree with us you can click here to send a prepared email to the Minister for Justice – you need only fill in your name and [optional] address – asking what he plans to do to remedy the flaws identified in the Privacy International report.
December 29th, 2007
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