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)

The purpose of this amendment is to delete section 7 and replace it with a new section which, in essence, seeks to limit the responsibility of service providers to co-operate with the disclosure request. Before the introduction of a statutory scheme, the then service providers made data available to the Garda on request when required for criminal investigations and safeguarding the security of the State. In those circumstances relations between the operators and the Garda developed in order that the voluntary scheme was based on good will and common sense on both sides. Any garda could request data in respect of a crime he or she was investigating and this system was not regulated by statute but, as stated, operated on a common-sense basis without any issue.

The proposed amendment would seriously hamper the ability of law enforcement agencies to seek data for the purposes specified under the Bill and would almost certainly introduce a degree of uncertainty into the operation of the legislation because, at present, data retention operates under Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 and all parties to this legislation apply common sense when requesting and supplying data. To date there have been no trawling exercises or abuses of the system.

If a disclosure request is not possible, is unreasonable or is so wide as to place an undue burden on the service provider, there can be no expectation by the requesting party that the service providers will be able to comply with the request. That is a given in the operation of the scheme.

This issue also arose during the discussions between the officials in the Department of Justice and Law Reform and the service providers in the various State agencies. It was acknowledged by all parties that the existing legislation had not been abused by unreasonable requests and that the service providers could only comply with what was technically possible and feasible.

In essence, there can be no expectation by the Garda Síochána, the Revenue Commissioners or the Permanent Defence Force for the service providers to comply if the request submitted is technically impossible or not feasible. Furthermore, if a number of requests or single request is made to a service provider which are or is unreasonable in scope, naturally this would come to the attention of the oversight judge whose duty it is to review the operation of the legislation. If the judge notes an unreasonable number of requests or what would amount to a trawling exercise, then it is within his or her remit to report the matter to either the Taoiseach or the Minister for Justice and Law Reform and the Data Protection Commissioner.

It is important to note that an amendment such as the one being proposed by the Senators may also have an undesirable effect on the relationship between the service providers and the State. The existing system has worked well without any abuses and, correspondingly, there has been no need for sanctions or penalties against the service providers for failure to comply with the request. With reference to this Bill, I do not think it is appropriate to introduce criminal sanctions and penalties into a system that already functions efficiently without them and, as such, the Minister cannot accept the Senator's amendment.


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