Peter Power (Limerick East, Fianna Fail)

I understand where Deputy Sherlock is coming from in this regard. Indeed, the thrust of his amendments are not to put an undue burden on the service providers, who are co-operating with the Government and the various statutory authorities on a voluntary basis, to their credit.

Amendment No. 7, however, seeks to replace section 7 with an entirely new section. At present, section 7 obliges service providers to comply with a disclosure request. This means the law enforcement authorities and the service providers are in no doubt of their responsibilities under the Act. Section 7 complies with the requirements of Article 3 of the directive. Any lessening of the obligation to retain data as suggested in the amendment could leave us in the position of being informed by the Commission that we were not in full compliance with the directive, along with all that would entail for the country.

The amendments would seriously affect the law enforcement the ability of agencies to seek data for the purposes established by the Bill and would introduce a large element of uncertainty into the operation of the legislation. As regards the wording of the amendment, of course everything is technically possible within the confines of the directive, but what is reasonable and does not entail an undue cost are subjective judgments and would depend on the circumstances of each individual case. However, by their very nature it is difficult to envisage a scenario whereby blanket requests would be made. The legislation provides that such requests may only be made in respect of serious offences and the nature of such serious offences are set out in the legislation. It is difficult to envisage a situation whereby someone could inquire into or investigate a serious offence and that the request for disclosure from a service provider or telephony operator would not be of a very specific character; for example, a request related to one suspect or a possible witness, where he or she was, whether he or she made a phone call or whether two potential suspects make a call to each other. It is difficult to envisage circumstances whereby there could be a broad trawl. However, I understand where the Deputy is coming from.

At present, data retention arrangements operate within the statutory provisions established in the Criminal Justice (Terrorist Offences) Act 2005 on the basis of goodwill and co-operation between the Garda Síochána and the service providers. This means both sides use common sense when requesting or supplying data. The memorandum of understanding being drawn up between the law enforcement authorities and the service providers will ensure both sides are clear about how the system will operate. Amendments such as this proposed amendment could affect such goodwill and introduce the uncertainty to which I referred earlier. Deputies will note there is no penalty for failure to comply with a disclosure request. The reason for this is not to draw the criminal law into a system that works well without it and which is essentially voluntary in nature. Similarity, the system has worked well without the proposed amendment and for this reason the Government is not disposed towards accepting the Labour Party amendment.

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