Mr. Dan Kelleher:

If I understand the question correctly, it is if the Garda is investigating one scenario, be it for national security or law enforcement, and comes across what we might call indicators of another crime being committed, whether it can use that to pursue the crime. It is very difficult to prescribe specific scenarios, but if we could just take it back to first principles, the general and indiscriminate retention of data in the future will only be for a national security purpose. The data will be in a box, as it were, and to get into the box we must be able to show that there is a national security angle to the request. Let us assume that if we go into the box for a national security reason and when we get the data we have indicators of criminal activity, we cannot un-ring the bell. We have seen the information and I suspect that we would have to go off and do a separate investigation, but we cannot forget that we have come across that information. Were we to have sought that information in the first place for a law enforcement reason, we would not have received the information.

The second plank of my reply relates to what Deputy Kenny asked could be done if online child abuse material was discovered. I apologise to my colleague from An Garda Síochána because he would not have seen the latest versions of the text. The Bill to be published next week will allow for retention of IP source data, as I mentioned earlier, and that data will generally be retained and access to it will be permitted, subject to judicial authorisation, as the CJEU has acknowledged is allowed, for both national security purposes or for serious crime purposes. We have been made aware that it is a particularly important power for the investigation of online child abuse scenarios. This is complex, so that is the best answer I can give at this moment in time.

The final point I would make is that if information is initially being sought for a criminal investigation purpose, in the guise of what we call a preservation order or production order, for law enforcement, those orders will be forward going in time because we cannot get around the fact that general retention is for national security purposes only.

I will make a very quick reference for the aid of the committee. In the Dwyer judgment online in the CJEU, I think it is paragraph 90 to 100 of the judgment, the Danish Government asked the CJEU if it could make use of information it had obtained for a national security purpose for another law enforcement purpose and, unfortunately, from my Department's perspective, the CJEU said it could not because that would undermine the rationale that we are only retaining it in the first place for a national security purpose. It is quite a challenging set of drafting instructions that we are dealing with at the moment.