Seanad debates

Thursday, 20 January 2011

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


12:00 pm

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

While I understand the motivation behind the amendment, section 6 provides that where a member of the Garda Síochána not below the rank of chief superintendent - this is a significant point - makes a disclosure request to a service provider, the request must be made in writing. However, in cases of exceptional urgency a request may be dealt with orally and where such a request is made, it must be confirmed to the service provider in writing within two working days.

The amendment proposes that where an oral request is made, a numbering system should be used, whereby a unique identifier number would be assigned to each oral request and included in the subsequent written confirmation. I appreciate the intention behind the proposal and the attempt to ensure oral requests are followed by written confirmation, a highly desirable outcome. However, this provision reflects standard Garda procedure in cases of exceptional urgency. It is based on a similar provision in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, the Criminal Justice (Terrorist Offences) Act 2005 and, more recently, the Criminal Justice Surveillance Act 2009, whereby an oral request is made in circumstances of extreme urgency and followed by written confirmation.

In the vast majority of cases a written request will be the norm, whereas an oral request would only be made in an extreme case. In a case of exceptional urgency such as a terrorist threat to the security of the State not only would there not be time to prepare a written request, there would also not be time to go looking for the next incremental identifying number in an infrequently used system. Therefore, the procedure proposed would not be practical.

It should be noted that the reason a request may be made orally is a possible incident that requires the utmost urgency. The focus of the Garda and investigating authorities will inevitably be on matters other than numerical administration.

I refer to a kidnapping, the prevention of a suicide where time is of the essence and there is no time to submit a request in writing, let alone generate and assign a unique identifier number to the request.

In addition to the points made, if we were to accept the amendment, it would run contrary to the provisions of section 7 of the Criminal Justice (Surveillance) Act 2009 which allows a member of the Garda Síochána, the Permanent Defence Force or the Revenue Commissioners to carry out surveillance in urgent cases. In these circumstances, a written record of the surveillance must be made within the periods specified under the Act. Introducing a requirement in this Bill for a unique identifier number would create a discrepancy between the two. None of us wants to create such a situation.

Similarly, it would not be appropriate to introduce a provision in legislation dealing with an administrative procedure of this nature. The important point is that the request will be confirmed in writing within two working days. This is a system used by the law enforcement authorities and it has worked without difficulty to date. I see no reason to depart from it. I must, therefore, decline the amendment.


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