Thursday, 20 January 2011
Communications (Retention of Data) Bill 2009: Committee and Remaining Stages
Peter Power (Limerick East, Fianna Fail)
As I am not aware that this would be a criminal offence, the issue does not arise. Section 6 enables the Garda Síochána to request service providers to disclose retained data. The amendment seeks to include a new subsection to provide that a service provider which inadvertently disclosed data that purported to be in accordance with the new regulation but which was not, or which provided the wrong data, would be immune from civil action or criminal prosecution.
I remind the Senator that the provisions in respect of the retention of Internet data are not new. Service providers have been retaining and responding to requests for the disclosure of telephony data since Telecom Éireann fell within the remit of the then Department of Posts and Telegraphs. It was the main provider of telephony services in the State. The current data retention arrangements operate within the statutory provisions established by the Criminal Justice (Terrorist Offences) Act 2005 on the basis of goodwill and co-operation between the Garda Síochána and service providers. This means that both sides use common sense when requesting and supplying data. The disclosure request will be sufficiently clear and leave the service provider in no doubt it is in compliance with the Bill. In turn, the service provider must have procedures in place to ensure the correct data are accessed. That is why the memorandum of understanding, referred to during the debate on Second Stage, is so important. The memorandum of understanding is being drawn up between service providers and will ensure both sides are clear on how the system will operate.
The current disclosure regime under the Criminal Justice (Terrorist Offences) Act operates well on the basis of goodwill. There is no penalty for failing to comply with a disclosure request. The reason for this is we do not want to draw criminal law into a system that operates very well without it. However, section 12 of the Bill provides that a judge designated to oversee the operation of the provisions of the legislation may communicate with the Minister at any time on disclosure requests if he or she considers it desirable to do so.
The Minister intends to keep the operation of the Bill under review. There is provision for a European-wide review of the directive. The intention of the amendment is laudable, but in practice the system has worked well to date without the proposed amendment. Therefore, it is not being accepted.