DRI v Ireland
As widely reported Digital Rights Ireland appear to be preparing legal proceedings against the State in relation to the directive issued by Mary O'Rourke in 2002 to telecommunications providers to keep a record of commuications by individuals for three years, which can then be accessed by Gardai without a warrant if they believe it will help in investigation of criminality. DRI explain the legal background to the directive
The Minister for Public Enterprise (as she then was) purported to issue those directions under Section 110 (1) of the Postal and Telecommunications Services Act 1983 requiring telecommunications providers to retain that data, being detailed non-anonymous traffic data, and to retain it for a 3 year period, for the purpose of facilitating requests from An Garda Siochana and from the Defense Forces under Sections 98A and 98B of the Postal and Telecommunications Services Act 1983, as inserted by Section 13 of the Interception of Postal Packets and Telecommunications Messages (regulation) Act 1993.
Have a look at the rest of the legal brief on the DRI blog
This is going to be an interesting one. DRI are going to have to show not only a breach of privacy rights (which shouldn't be too difficult) but also that the breach is disproportionate to the objective sought to be achieved. This might be somewhat more difficult. To latch on to the mobile phone issue, my understanding is not phone calls or text messages are to be recorded, but that the fact that a call was made/received, by whom, from whom, when and where (physically). If evidence of such a nature could in fact help in the investigation of a crime then can't the State make a relatively convincing argument that the surveillance is limited (because conversations aren't being recorded) and that it is proportionate to the desired objective? I don't necessarily agree, but it's an argument that wil undoubtedly be made.
My understanding is that the proceedings are going to be largely on data rentention grounds, which is not my area of expertise or even interest despite a seemingly endless year of IT and data protection law sometime in the last century (TJ of course is the real expert here), but the case will certainly be interesting if it proceeds.
This is going to be an interesting one. DRI are going to have to show not only a breach of privacy rights (which shouldn't be too difficult) but also that the breach is disproportionate to the objective sought to be achieved. This might be somewhat more difficult. To latch on to the mobile phone issue, my understanding is not phone calls or text messages are to be recorded, but that the fact that a call was made/received, by whom, from whom, when and where (physically). If evidence of such a nature could in fact help in the investigation of a crime then can't the State make a relatively convincing argument that the surveillance is limited (because conversations aren't being recorded) and that it is proportionate to the desired objective? I don't necessarily agree, but it's an argument that wil undoubtedly be made.
My understanding is that the proceedings are going to be largely on data rentention grounds, which is not my area of expertise or even interest despite a seemingly endless year of IT and data protection law sometime in the last century (TJ of course is the real expert here), but the case will certainly be interesting if it proceeds.
Did they not get the omagh guys by tracking their cell phones. They also have found bodies of missing people (I think Robert Holihan ) with mobiles as well.
Posted by
simon |
1:11 PM
Simon I'm not sure but if they did perhaps it would be an endorsement of the policy?? Maybe Damien/TJ know more?
Posted by
F |
1:14 PM
Speaking for myself (I'm not in DRI) it's a case of blanket bombing when a sniper is required. I explained it here in the comments of Suzy's post: http://mamanpoulet.blogspot.com/2006/07/dri-vs-ireland.html
Robert Holohan was found when the phone was switched off. It was done using the lovely laws of physics and an antenna vibrating at a unique frequency even when turned off. I believe Antoin could comment more on this.
My main issue is that it is mass wiretapping without judicial oversight.
Posted by
Damien Mulley |
3:08 PM
Damien
thanks for that - have popped over to Maman Poulet to look at the comment. So I suppose we'd be happy enough if companies were required to keep records but gardai could only access them with judicial leave?
Posted by
F |
8:47 AM
I'd have to be suspected of a crime and a judge would have to agree with the justification. The data protection laws would also have to beefed up to prevent anyone bar senior directors accessing the information too. I think an annual report should also be given with stats on which stations/groups in the Gardai asked for the information. There needs to be a lot more done to make sure there are safeguards and I think much more transparency is needed.
Posted by
Damien Mulley |
2:27 PM
>So I suppose we'd be happy enough if companies were required to keep records but gardai could only access them with judicial leave?
I can't agree. The issue of principle is whether the private sector can be required to spy on all customers at all times just in case one of them might at some uncertain time in the future do something wrong. In effect, we create a situation where everyone is a suspect, and everyone is monitored without any suspicion, much less any judicial authorisation or effective safeguards. Bear in mind that the data collected includes all your movements (via your mobile phone). We wouldn't accept a situation where you were followed by the police at all times and your movements and communications logged, so I'm at a loss to see why it should be any more acceptable when done invisibly - except to the extent that it is out of sight and therefore out of mind. Ultimately, a society where everything you do is logged and monitored is a society where there is a chilling effect on the exercise of your rights.
TJ
Ps - That's the issue of principle. We'll leave for another day the practical likelihood of abuse of these vast databases held in the private sector.
Posted by
TJ |
3:20 PM