Seanad debates

Thursday, 20 January 2011

Communications (Retention of Data) Bill 2009: Committee and Remaining Stages


11:00 am

Photo of Peter PowerPeter Power (Limerick East, Fianna Fail)

I thank Senators for their submissions. I propose to discuss these two amendments together because they refer to the periods for which data are retained. Section 3 of the Bill provides for the retention of telephony data for a period of two years and of Internet data for 12 months. In essence, the purpose of the amendments is to reduce the existing retention periods to half of the times provided for in this Bill.

The essential issue is one of balance between the effective administration of justice and the placing of an overly onerous obligation on business in this country. Our judgment must be as to where that balance lies. I would be very concerned by any measure, as mentioned, that would place Ireland at any competitive disadvantage in regard to e-commerce. All the evidence in regard to the ongoing and disproportionate amount of investment in this area by global companies in Ireland suggests that even the current periods for retaining data, to be halved by this Bill, appear not to be a detraction towards such inward investment. However, I am advised that the acceptance of this amendment would hamper seriously the law enforcement authorities in their continuing efforts to bring serious criminals, including terrorists, to justice. I know this is not the intention of the Senators but it would be the inevitable outcome.

With regard to the different time periods in the negotiations which gave rise to the data retention directive, the time period for data retention was probably one of the most contentious issues discussed and the most difficult on which to reach agreement. The time period for data retention was probably one of the most contentious issues discussed and the most difficult on which to reach agreement. As is the case with many EU legal instruments, it was acknowledged that many member states had differing traditions and practices, sometimes built up over many years, relating to retention of data and its use as a weapon in the fight against serious crime and terrorism. As such, it would be difficult to agree on a standard or homogeneous retention of data right across the European Union.

A number of member states already had legislative measures in place governing data retention but other member states had no legislation. It was for this reason that a range of retention periods of not less than six months or more than two years was eventually agreed. This represented a parameter within which each member state could operate. Therefore, any retention period within those ranges is perfectly valid and fully in compliance with the terms and aims of the directive. The debate here and in the Dáil and committee concerned where the balance lies within those parameters.

On Second Stage the Minister for Justice and Law Reform explained in some considerable detail our traditions and practices as they relate to data retention, built largely on voluntary disclosure and good will between the various agencies. There is no need for me to repeat here what he said as it is on the record of the House. I emphasise the importance of data retention in the investigation of crime. It would be very difficult to exaggerate the importance of this method in criminal detection and investigation, especially in the modern world where digital communications technology is ubiquitous. One can think of any number of ongoing investigations which are lengthy, detailed, complex and are taking well over a year. Most Senators know what I am referring to.

It is accepted that the majority of disclosure requests are for data less than three months old. The ability to access older data can make a big difference in the investigation and prosecution of crime, especially crime resulting from lengthy planning or of an ongoing nature. Other countries with different methodologies in fighting crime may lay less emphasis on data retention and more emphasis on surveillance, covert operations or other evidence gathering techniques and measures, for example. Shorter retention periods might be more appropriate in these countries. Having said this, our 12-month retention period for Internet data is very much in the mainstream and comparable with other European countries and neighbours.

Senators are aware that during the preparation of the Bill there was an extensive consultation period between the Department of Justice and Law Reform, various service providers, their representative associations and the Garda Síochána. This was one of the reasons for the delay in bringing the Bill before the Houses. We wanted a complete and full consultation between all relevant parties. During this consultation process the issues relating to the nature of the information to be retained, the State's position and costs and the retention periods were discussed in detail. In addition, the 12-month retention period for Internet data was agreeable to all, particularly in the light of the cost implications.

I also refer to the issue of costs, which was raised on Second Stage and also by Senator Quinn today. For reasons of commercial sensitivity, the various service providers were not prepared to disclose individual costs, which is fully understandable. However, they agreed through one representative association to offer a composite figure compiled by the nine largest communications companies in the State. They estimate there will be an initial once-off capital cost of €2.9 million, with the annual running cost of data retention coming to a total of €1.577 million. It should be noted that the Internet companies wish to retain the data for some period themselves; therefore, the cost is not as a direct result of this legislation.

This is a composite figure for the nine largest communications companies as supplied by the industry and, in proportionate terms, this is a relatively small amount when one considers the annual turnover of the telecommunications sector in this country. It should be noted that when addressing the issue of costs and the periods of retention, some of the data the service providers are obligated to retain are already held by service providers for commercial purposes such as marketing and billing. The figures I mentioned should not be taken to be resulting directly from the enactment of this legislation.

We should not actively pursue a course that would allow commercial companies to be compensated by the State for activities from which they may already benefit. I reiterate the comments of the Minister from Second Stage in expressing the appreciation of the Government and the Department to the various service providers for their willingness to operate the data retention scheme in such a manner of good will and co-operation with law enforcement authorities to date. In particular, as in line with a number of other member states in the European Union, costs are not reimbursed and this is a good example of how industry can give practical effect to its own social responsibilities in helping our State, law enforcement and taxation agencies to fight crime by disclosing to them the information potentially at their disposal. For the reasons stated I am not in a position to accept the amendment.


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