Patrick Costello (Dublin South Central, Green Party) | Oireachtas source

The flow of my nice video for social media has been broken, but that is all right. Where was I? Even if facial recognition technology does work, and it does not, it opens the door to mass surveillance and threatens the rights of citizens in the EU. That brings me back to the point about balance. Facial recognition technology is something that needs full pre-legislative scrutiny. It is not something that can be added as an amendment on Committee Stage. The pre-legislative report of the Joint Committee on Justice said that body-worn cameras and recording devices should not have facial recognition technology. Given that the committee has already looked at this and said it does not think facial recognition technology is appropriate, to try to introduce it in a Committee Stage amendment would sidestep the debate that is much needed whenever we give the Garda more powers.

I also question why the rush. The EU is working on an artificial intelligence, AI, act which would regulate things such as facial recognition technology, AI and algorithmic software. Quite often, Deputies raise issues in the House around regulation we desire or that we feel is needed and we are told the EU is working on it and why would we pre-empt the EU. Therefore, when the EU is so often given as a reason not to rush, if the EU is working on this, why then are we pre-empting the EU in this case? It strikes me that rushing on facial recognition technology is premature given the state of the technology, the lack of consideration given to it in the House and the developments that are taking place at EU level.

I will now turn to what is in the Bill.

Section 9(1)(a) provides for the use of recording devices in public or in a place where a garda is entitled to be by law or in the operation of their duty. It is described quite clearly. Section 9(1)(b) provides for the use of recording devices on animals in a public place or a place where a garda is entitled to be. Section 9(1)(c) provides for the use of drones but does not include those qualifiers concerning a public place or a place where a guard is entitled to be.

I raised this point during pre-legislative scrutiny. A drone for crowd control at a public demonstration on O’Connell State is one thing, but a drone operating above a suburban estate is a very different thing and will record things that are not in a public place or a place where a garda is entitled to be. That raises questions about search without warrant and these kind of things. For section 9(1)(c) to not have those qualifiers is a problem. Obviously, this will end up in the courts and jurisprudence will come out of that but we should put those things in the legislation.

Section 43 refers to the codes of practice. Section 43(3)(b) lists those bodies that should be consulted on the development of the codes of practice. There is no public consultation in that and I fully believe public consultation should be part of the development of a code of practice and should be baked into the legislation. That is for a variety of reasons. First, it will provide a chance for citizens to comment on the rules by which they are policed, which is inherent in the policing by consent that An Garda Síochána undertakes. Second, it is a way of educating the public about their rights and the powers of the Garda so that an informed citizenry knows what is happening. The committee said in its pre-legislative scrutiny report that the justice committee should be included and that the draft code of practices should be put before the committee for debate or consideration, or the option of consideration at least.

Another angle I ask the Minister to look at before Committee Stage is the frequency, every five years, with which these are to be reviewed. The pre-legislative report of the committee said it should be every two years. Five years is too long for review, given the intrusive nature of cameras and recording devices. There are times when we need members of the Garda to be intrusive in the interests of public safety but it is important that we consider those guidelines and codes of practice more frequently than every five years.

Section 39 concerns the approval of processing of live feed of third-party CCTV without a judicial warrant. This would allow for an officer of sufficient rank who is independent of the investigation to provide approval for this. Again, the committee's pre-legislative report raised concern over this. I would raise concern in general in relation to members of the Garda approving their own warrants. The logic of the court case this came from, Damache v.Minister for Justice, was that to provide checks, balances and oversight, a warrant should be considered by someone entirely independent. Given the PwC culture audit, in which people are still talking about the importance of silence in An Garda Síochána or members' fear of speaking out, how independent can such a warrant truly be? We are better off having it fully independent in the hands of the Judiciary. That may beg questions as to whether the District Court has capacity, but the issue there is of judicial capacity, which I have spoken about many times on my hind legs in here, and with the Minister. The fix is judicial capacity and the capacity of the District Court, instead of a shortcut through the rights of the citizen.

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