| Consultation over data Bill is a farce By Karlin Lillington
21/02/2003
The Department of Justice has rather novel ideas about how to conduct a public consultation process.
For the "first phase" of a consultation process on its proposed data retention Bill - an oppressive proposal that would see the mandatory retention of all your phone, mobile, internet, fax and email traffic information for three years - the Department has designed an agenda that has nothing particularly public, nor consultative, about it. According to the Minister for Justice, Mr McDowell, the data needs to be retained for possible criminal investigations. But such data may already be retained for a reasonable six months, and with a warrant,for longer. The Government is also now severely out of synch with the stance on data retention taken by its neighbours, Britain and the United States. In Britain, a cross-party parliamentary group studying the issue roundly rejected data retention last month after months of consultations, concluding that it was costly and unworkable, would cause many businesses to move to other countries, placed personal information at risk, and contravened established privacy rights. On the US side, despite heightened fears of terrorism, both Congress and the Senate this month voted to gut and pull funding from the FBI's proposed total information awareness (TIA) programme, which would have pooled digital information from a wide variety of sources to produce dossiers on every American. A particularly offensive part of the proposal, according to comments by the lawmakers who opposed it, was the notion of retaining the same kind of traffic data envisioned for the Irish Bill - though even then, it would not have been on such a wide scale as Mr McDowell is promoting. More ominously, US legislators only rejected the use of TIA on Americans. Vast permanent databases of information on Irish and other foreign citizens would no doubt be attractive to US law enforcement - the exact groups which pushed the EU hard to dissolve long-standing data protection policies and introduce long-term data retention schemes they dare not impose on their own citizens. Our gutless MEPs bought the argument - and here we are. But back to the Department's proposed consultative process - a clear afterthought to secretive moves by the Department to bring in such a Bill. The time for consultations was surely as the Bill was being drafted. However, the Department already has its preliminary draft, written long ago over the summer. But neither the industries that will bear the brunt of retention, storage and management costs for such a proposal, nor the State's privacy rights, internet or citizens' groups, were consulted before the draft was written. Indeed, a leaked confidential memo revealed that the Department told the EU Council of Ministers it felt it had no need to consult with the industries involved because it knew they would be co-operative. This assumption came as a surprise to affected industry groups such as the Irish Internet Service Providers Association. Then two weeks ago, the Department revealed what it is calling the "first" element of a consultation process, a three-hour event this Monday in Dublin that has not been publicly announced. Invitations and a draft agenda went out to a closed list of organisations (many of which have since been trying to figure out who else has been invited). The event has little that is consultative about it. According to the draft agenda, the speakers include the Minister, talking for 20 minutes (who, of course, supports the Bill). Then, the Department of Communications gets all of 10 minutes to discuss Directive 97/66/EC and "the processing of personal data and the protection of privacy in the telecommunications sector and amending Directives, and technical aspects of data retention." Whew - in 10 minutes? Then, believe it or not, the audience will be treated to a 20-minute presentation by An Garda Síochána on - wait for it - "the contribution of data retention in the fight against crime". Excuse me, but isn't this a little like having a public consultation on the military use of Shannon Airport at which the only speakers are the Irish and American governments? Shouldn't the Department be gathering and listening to viewpoints, rather than expressing them? Many invitees took one look at that agenda and were taken aback that the official guardian of privacy rights, the Data Protection Commissioner, Mr Joe Meade, wasn't on the list. They also wondered why an industry representative wasn't speaking. So I called Mr Meade. Surprised that he wasn't on the draft agenda sent to all the invitees, he says he will indeed be speaking. So I called the Department. Apparently, the agenda still hasn't been finalised. If Mr Meade was always on the speakers list, the Department made a gross error in leaving him off the draft agenda - an exclusion that has already lost it credibility and done it serious damage in the minds of many attendees. Also, as far as I can ascertain, no one from industry has been asked to offer a perspective. It really doesn't matter if there are intentions to ask for such views. The Department has set out its stall, and can hardly be considered impartial. At stake is the greatest mass compromising of personal privacy ever proposed in this State. The Department that is proposing to limit long-accepted personal freedoms and privacy rights must not be allowed to conduct afterthought consultations when its own bias is already so clearly displayed. If the Dáil lacks the backbone its British and American counterparts have shown in crushing such proposals, it must at least place an independent, multi-party Dáil committee in charge of the consultative process. | 
