Mr. Dan Kelleher:

I am a principal officer in the criminal legislation function in the Department. I am conscious of time. The background of this is well known, so I will confine my remarks to noting what the most immediate impacts of the CJEU rulings are, as crystalised in the Graham Dwyer judgment of 5 April of this year.

We saw that there were three points. The first was the confirmation that general and indiscriminate retention of traffic and location data for the purposes of prevention, detection, investigation and prosecution of serious crime can no longer be permitted. The second was the confirmation that general and indiscriminate retention of traffic and location data is only permitted for national security purposes and not serious crime purposes. The third main point of the CJEU's rulings was that access provisions for traffic and location data must incorporate prior judicial scrutiny, other than in certain urgent circumstances and, in such circumstances, there must be post-review.

In the view of the Department and the Minister, the law enforcement and national security concerns and operational risks arise on two fronts. The first is where concerns have been raised by service providers, with the Department, with regard to the legal robustness of holding the data that are already retained under the existing 2011 Act, now that the CJEU has issued its final ruling in the Dwyer case. The second is where serious concerns exist from the point of view of national security and the prosecution of serious offences, that a robust legal framework be in place for the retention and disclosure of communications data that supports these aims, while abiding by the constraints set down in the CJEU judgment.

Given the urgency of the matter, our Minister undertook to produce a draft general scheme which was published on 21 June. That scheme provides for two main pillars of response. The first pillar is the retention of traffic and location data and authorisation for disclosure of such data is for national security purposes. This is a considerable change from the existing legal regime. The first of those changes is that retention can only be for national security purposes and not for serious crime purposes.

The second big change is that both the retention decision and the access to that material can only be permitted on foot of independent authorisation by a judicial authority. The second plank of the response includes preservation orders and production orders. The committee will have received our material on that but the key distinguishing feature in terms of preservation orders is that they only require the data to be retained for a set period as authorised by a judge. They do not entail access by the investigating agencies. Production orders do indeed involve access to certain data but only data as specified in the application for the order. Such orders can be for either serious crime or national security. Those are the key features of the Bill.

I am conscious of time but the Chairman asked for clarification and I should address the gap between the published general scheme and what is pending in the Bill. I apologise for the misunderstanding in that regard from my appearance last Monday. This Bill is being developed in a truncated timeline. Assuming it passes scrutiny, which, of course, I cannot assume, the Bill does include a number of further measures, most notably, one involving general retention of what is called IP source data. These are data that, where the Garda investigation identifies unlawful online content, it can track back and see what IP address is linked to that content. The Court of Justice of the European Union, CJEU, has been explicit that such a measure is permitted under its rulings, as has the European Parliament. Again, however, it is intended that this will only be on foot of a judicial authorisation. The theme of judicial authorisation, therefore, comes up again and again because that principle underlies much of the content of the Bill. There are other provisions but we can deal with them in the question-and-answer slot. I thank members for their time.