New proposals take account of evolving ECJ jurisprudence
Minister proposes a new scheme of prior judicial authorisation for every case involving a request to access meta data by An Garda Síochána and all State agencies for investigative purposes
Overall oversight of the new legislation will continue to be vested in a High Court Judge with a Judge of the Circuit Court independently investigating complaints
Minister publishes Mr Justice John L. Murray’s Review of the Law on Retention of and Access to Communications Data which provides advice to Government on aspects of the evolving EU legislative landscape
Minister will ask Joint Committee on Justice and Equality to consider the general scheme of the Communications (Retention of Data) Bill and the Murray Report
3 October 2017
The Minister for Justice and Equality, Charlie Flanagan, today (Tuesday) published the general scheme of the Communications (Retention of Data) Bill following approval by Cabinet. This proposed new legislation responds to recent judgments of the European Court of Justice (ECJ). The Minister will also published the Report of Mr Justice John L. Murray’s Review of the Law on Retention of and Access to Communications Data which also considered the law in this area. This Review was initially commissioned to look at issues around access by statutory bodies to communications data of journalists held by communications service providers, however, Mr. Justice Murray also undertook a very detailed analysis of the evolving case law coming from the ECJ as part of his review, in particular the case of Tele2 case.
In light of the evolving jurisprudence coming from the ECJ, Ireland, in common with many EU Member States is revising its data retention laws. The general scheme of the Communications (Retention of Data) Bill will update the law in Ireland and give effect to the ECJ ruling in the Tele2 case including by:
providing for Ministerial authorisation for the retention by service providers of targeted categories of traffic and location data for the purpose of the prevention, detection, investigation or prosecution of serious crime or safeguarding the security of the State;
requiring prior judicial authorisation for disclosure of retained communications data to the Garda Síochána and other agencies; and
providing for the data concerned to be held for up to a 13 month period in the European Union.
Overall oversight of the new legislation will continue to be vested in a serving High Court Judge and with a serving Judge of the Circuit Court independently investigating complaints.
Minister Flanagan stated:
“It is important that Ireland’s Data Retention laws remain robust and are updated in line with evolving case law coming from the ECJ. The ECJ has identified difficulties with the model that EU Member States use to manage law enforcement access to communications data. We are now responding to the changed legislative landscape with the General Scheme of the Communications (Retention of Data) Bill, 2017.
“In particular, I am proposing the introduction for the first time of a system of prior judicial authorisation for access to the communications data retained by service providers in respect of all users in Ireland. It is important to stress that communications data in this context essentially means billing data, not the content of any communication.
“Access to communications data is vital in combating crime and terrorism and I am committed to putting it place as a priority, the most effective laws possible to provide for this and also to protect fundamental rights, including privacy. All EU states will have to have regard to the evolving legislative landscape and I want Ireland to be in the vanguard.”
Minister Flanagan concluded:
“I want to express my particular thanks to Mr. Justice Murray for his detailed review which is a very valuable contribution to this complex and dynamic area of law. I am today writing to the Oireachtas Committee on Justice and Equality to ask them to consider this report and to undertake pre-legislative scrutiny of the general scheme of the Communications (Retention of Data) Bill, 2017.”
Note to Editors
Meta data comprises subscriber data, traffic and location data which is held by service providers, that is, mobile phone and internet companies. It does not include the content of calls, texts or e-mails.
The ECJ ruling referred to above is: Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others