Ireland's secret data retention regime: I wrote a piece in today's paper that I feel is one of the more important stories I have written during my years at the Irish Times, concerning the Irish government's deliberately secretive introduction of call data retention (the holding of call traffic information about every fax, mobile and fixed line call in the state, made by every single citizen, from children to pensioners). This makes Ireland the only country in the West to have brought in a mandatory data retention scheme at a time when such plans are hugely contentious and hotly debated in North America and Europe. That this democracy snuck this in in such a way that it purposely would not be known by either the people's elected representatives, the judiciary, or the Irish people is beyond belief. Neither the US nor Canada allows data retention.
Unfortunately, the paper chose to run it on page 6, downgrading the subject's significance. The story was also substantially cut. Sadly, this implied that the issue is of so-so importance to the people of Ireland. To my mind, this is a story that documents the single greatest mass violation of civil rights in this country in the nearly two decades that I have lived here. The story was also cut substantially -- understandably, for length reasons -- but unfortunately some key elements were eliminated as well.
One important ommission was the international context for what Ireland has done, with comments from Washington DC research organisation EPIC's policy counsel Cedric Laurant giving a perspective. Also, some important comments by lawyers were cut. And the lede was altered to be 'safer'.
People need to understand how appalling this ministerial Direction is, especially as the current Government sanctimoniously tells us it must limit the scope of Ireland's Freedom of Information Act to allow them to govern more effectively. If their proposed amendments to the Act go through, this Direction would have been hidden from view for 10 years rather than five -- had not Ireland's Data Protection Commissioner given details of it recently. I have more to write about all this next week -- there's far more to the story of what was done and how, and it gets worse. In the meantime, I offer the full, uncut piece:
A Cabinet direction last April ordering phone companies to secretly retain the telephone call records of Irish citizens for three years may violate European law and the Irish Constitution, according to Irish and international legal experts.
Commentators – including the Data Protection Commissioner, Mr Joe Meade -- have also expressed grave concern that the Direction was enacted in a such a way that it was not subject to Oireachtas oversight or judicial review.
According to several legal sources, the Government seems to have secretly used laws designed to allow the interception of phone calls to collect data traffic on the State's entire population. However, because the actual Direction has remained secret, the Irish Council for Civil Liberties (ICCL) noted that it was difficult to determine exactly what was done.
The Department of Justice disputed this view. A spokesman said that data traffic retention (retaining records of information about when and where calls were made, by and to whom, and for how long) was different from data interception (the retention of the content of calls or faxes), and said the State was allowed to retain data traffic.
But data traffic laws allowing mass retention do not yet exist. The order for retention of data traffic was made using data interception laws intended for the surveillance of the call information of individuals suspected of committing a crime.
“It appears that the original laws would not have been intended to be used for the blanket retention of traffic data for all the citizens of Ireland,” said Mr Malachy Murphy, Irish Council for Civil Liberties. "The fact that this was done in secret also raises serious cause for concern, because there was no way anyone could have known about it to request a judicial review."
“This is a potential violation of the EU Convention on Human Rights, Article 8," said Mr Cedric Laurant, policy counsel for the Electronic Privacy Information Center (EPIC). EPIC is a well-known Washington DC-based public research organisation that has regularly taken court challenges on laws affecting privacy up to US Supreme Court level.
"If a government wants to intercept or retain data, there has to be an existing law with a text that is accessible to the public, and the action must be proportionate to need. Here, there was no law, and it was done in secret," Mr Laurant said. Ireland appears to be the only western country to have brought in mandatory data retention.
One senior Irish legal source said: "The Department's view seems to be that because there are no explicit restrictions on retaining data traffic, they can do this. Whereas, in a constitutional culture, the law is most likely to be interpreted in another way – because there is no explicit permission, it's not allowed. Unless there was express permission, this is unconstitutional."
The Direction, issued a month before the General Election by then Minister for Public Enterprise Ms O’Rourke on the instruction of then Minister for Justice Mr O’Donoghue after a Cabinet decision, remained under Cabinet confidentiality.
Telecommunications companies were explicitly told not to reveal the Direction, according to a statement made by Mr Meade at a Department of Justice forum on data retention last week.
The revelation comes as ministers have controversially announced proposals to restrict the terms of the Freedom of Information Act. Under the proposals, new limitations would be placed on the public's ability to scrutinise ministerial actions, and Cabinet decisions and discussions would not be revealed until 10 years afterward, rather than the five years specified in the current Act.
Mr Meade noted last week that he "was not happy with the Direction" in part because "it would have remained confidential until a Minister chose to reveal it." After Minister for Justice Mr McDowell disclosed the existence of the Direction at last week's forum, Mr Meade provided additional detail. Mr Meade was involved in Government discussions that led to Cabinet ordering the Direction. [read the rest here].
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