Michael McDowell (Dublin South East, Progressive Democrats)

The purpose of this and subsequent amendments is to give a solid basis in Irish law to the retention of communication data and to protect people in a way that is not done at the moment. Information concerning the use made of communications services is an essential aid to the Garda Síochána in the fight against crime and in combating terrorism and, together with the Defence Forces, the protection and security of the State.

Phone companies generate data regarding who phoned whom so that they can work out who pays the charge. Although there is provision in law to permit the providers of electronic communications services to disclose such information to the Garda and the Defence Forces, there is no obligation in law providing for the retention of such information in the first place.

In April 2002 the then Minister for Public Enterprise issued directions at the request of my predecessor to providers of telecommunications services obliging them to retain data for at least three years. Those directions were intended to be a temporary measure bridging the gap between the transposition into Irish law of an EU directive on privacy and electronic communications and the introduction of primary legislation on data retention which was approved by the Government on 20 March 2002. The transposition of that directive mandates that providers are confined to retaining data for a considerably shorter period than three years. As a result of an extensive consultation process with interested parties and publication of a draft EU framework decision on data retention during the Irish Presidency, the legislation was never published.

On 4 January 2005 the Data Protection Commissioner, Mr. Joseph Meade, issued enforcement orders to the providers in receipt of ministerial directions obliging them, with effect from 1 May of this year, to erase data which is more than six months old. In other words, he served a notice on them obliging them to erase data which was more than six months old. The commissioner took the view, and he is independent of me, that the temporary directions were in force too long and that it was time to replace them with primary legislation. Without some contrary action being taken, the initiative by the Data Protection Commissioner would, if the telecommunications companies accepted its validity, seriously undermine the ability of the Garda Síochána to investigate criminal activity, including terrorism and to protect the security of the State.

In its decision of 21 January 2005 in the case of the Director of Public Prosecutions v. Murphy the Court of Criminal Appeal upheld the admissibility of telecommunications data as evidence. In his opinion on this decision the Attorney General has stated that, notwithstanding the judgment of the Court of Criminal Appeal, it will still be necessary to enact new primary legislation requiring the retention of data by telecommunications companies. He also advised that the legislation would require safeguards against the possible misuse of statutory data retention provisions by the security forces.

The amendments seek to address the situation whereby providers of electronic communications services will be subject to two conflicting obligations in respect of retaining data information. These are the directions that were given under section 110 of the Postal and Telecommunications Act 1983 requiring that they retain data for at least 36 months and, now, the enforcement notice served by the Data Protection Commissioner under the Data Protection Act, requiring that they delete such data after six months. The advice of the Attorney General on the legality of the commissioner's actions was sought and he advised that the commissioner may be acting outside of his powers in this context but that the need for primary legislation still remains. I cannot go into a legal no man's land at this stage where there are two apparently conflicting directives given to telecommunications companies.

The framework decision ran into difficulties with the European Commission. It is difficult to understand exactly what has happened to the framework decision but it appears that the commissioner is of the strong view that data retention should be dealt with in the first pillar of the European Union treaties, that is the same pillar as data protection and communications. While it is probably safe to assume that the framework decision in its current form is moribund, we do not know what proposal will take its place. The Commission has apparently promised a first pillar on data retention but, whatever the outcome, it seems that any EU initiative will not now take place in a timeframe that would allow me to meet the May deadline set by the Data Protection Commissioner. Faced with that I must act now before 5 May. There is no EU cavalry coming down the hill to help me. I must sort out this conflict.

What we have put forward here is a statutory basis to replace the existing one, which allows a senior Garda officer to have access to such data for the purpose of investigating serious crime under the 1983 Act. What we now propose is to give that a statutory basis by putting a statutory duty on telecommunications bodies to keep the data they have for 36 months and to bring in a system of protections which are analogous to those that apply at the moment in respect of a slightly different situation, namely, the interception of communications regime.

Members of this House may or may not know that at present the Minister for Justice, Equality and Law Reform signs warrants for what is colloquially called tapping phones and opening mail in the post. First, the Commissioner of the Garda Síochána or the appropriate person in the Army applies for a warrant to an authorised officer in my Department who is designated under statute. That authorised officer must evaluate the application and prepare a file for me justifying the application if he or she supports it. The application comes before me with reasons and a background memorandum supporting the application for a wire tap or a warrant to intercept postal communications. If I grant the warrant it is put into effect.

There are two safeguards in place. First, if somebody believes he or she is being improperly tapped, a judicial officer is appointed to check out the situation. Second, there is a wholly different regime whereby a different judicial officer, a senior judge, reviews all the decisions I make every year and is in a position to report any impropriety on my part or any doubtful cases where I might have strayed from the straight and narrow. That is what happens regarding interceptions at present.