Frances Black (Independent) | Oireachtas source

I thank the Labour Party Senators Mark Wall, Maria Sherlock, Rebecca Moynihan, Annie Hoey and Ivana Bacik for putting forward this legislation, which is designed to create a safer environment for the common good of everyone. However, it is important to highlight the obvious concern that a balance between privacy and the common good must be struck. I am pleased that the Labour Party's press release on the introduction of this legislation refers to the need to tackle illegal dumping and other forms of antisocial behaviour. The reality of being able to identify culprits through the use of CCTV would naturally be a deterrent to this behaviour.

We have to consider the multiple issues the introduction of CCTV would create. While I of course welcome legislation that aims to make the work of councillors at a local level easier, considering the incredible amount of work they do every day in their constituencies, I fear that the introduction of legislation such as this will disproportionately affect the right to privacy of those in lower-income and working-class areas. It is essential that the right to privacy of every individual is not compromised when it comes to the introduction of CCTV in public spaces. I cannot express strongly enough that we cannot allow a disproportionate infringement on privacy rights in working-class areas with the introduction of a Bill such as this one.

While I believe the intentions of this Bill are positive, most of the issues it aims to tackle are covered by existing legislation. The Garda Síochána Act 2005 allows for CCTV to be erected and operated on authorisation from the Garda Commissioner for the purposes of "facilitating the deterrence, prevention, detection and prosecution of offences". This area also comes under the GDPR, the law enforcement directive, LED, and section 41(b) of the Data Protection Act 2018. Another point to note is that many of the purposes for which councils are using CCTV do not constitute offences and therefore fall outside the scope of the LED and Part 5 of the Data Protection Act. The breaches that are being investigated and the penalties levied are administrative, not criminal. The Data Protection Commission carried out an inquiry into Kerry County Council in March of last year.It found the Litter Pollution Act 1997, the Waste Management Act 1996 and the Local Government Act 2001 do not provide a lawful basis Kerry County Council's use of CCTV to detect litter offences. The DPC comprehensively considered these Acts and found they do not regulate this processing of personal data, as is required by the law enforcement directive, as transposed by the Data Protection Act 2018.

The DPC found that the way in which CCTV is being used did not meet the standards of clarity, precision and foreseeability in respect of such processing as required by the case law of the European Court of Justice and the European Court of Human Rights. While this Bill might be a response to those very real and pressing concerns, it does not really make its intersection with GDPR obligations clear enough. Potential concerns could arise as a result. The Bill does not include specific tests on the standards of clarity, precision and foreseeability which the DPC wants attached to processing.

Another important perspective when looking at this legislation is that several issues would also potentially fail to be covered by it. For example, the Bill explicitly applies to offences and actions such as littering, where there are administrative fines rather than legal prosecution, fall outside the normal definition of an offence.

At first glance, I commend the Bill because it is a very necessary attempt to help ease the burden felt by local authority members. The work they do every day is mammoth. However, beyond first glance and having taken at closer look at the legislation, bearing in mind the very real concerns that local authority members have, a better solution might be to amend existing legislation or perhaps even create new environmental offences.

However, in general the main issues with local authority use of CCTV seem to relate more to problems with governance and proper implementation of existing law, including GDPR. GDPR affords protection and implements a legal mechanism of proportionality when it comes to the prosecution of a crime. However, the fear is that access to CCTV footage may result in normalising detection of crimes which is not proportionate and necessary. Under GDPR, any processing of data must be necessary and proportionate.

Section 2 of the Bill mentions four purposes as follows: prevention, investigation, detection and prosecution. It is easy to see how a test of necessity and proportionality could be applied and satisfied in respect of investigation and prosecution of a known offence. However, the use of CCTV in prevention or detection requires much more care. The processing of data to investigate an offence is one thing but gathering or scanning personal data of whole communities in search of possible offences is a very different proposition. In addition, film or photographs of people's faces are not just personal data, but are biometric data, which are defined as especially sensitive personal data under Article 9 of the GDPR and are subject to a higher level of safeguard.

Overall, I reiterate that I commend the Bill's attempt to create safer environments and to act as a deterrent to crime in local areas. Of course, I respect any attempt to do that. However, I believe the Bill will require several amendments on Committee Stage to ensure more safeguards. As it stands, the Bill is porous. In truth it is not good enough to leave the inclusion or non-inclusion of such safeguards entirely to the Minister of the day.