Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 184:

In page 84, line 13, to delete “relates to content that falls within” and substitute “is necessary and proportionate for an investigation or prosecution in relation to”.

This amendment seeks to embed a GDPR-like provision around necessity and proportionality in this legislation to ensure we do not have a slightly wider framing. The legislation now refers to an online safety code that would only apply to interpersonal communications "in so far as it relates to content that falls within one of the offence-specific categories...". Again, what we want to avoid here are fishing exercises and hashing, for example. These aspects have been extensively debated in respect of the digital services directive. The Minister mentioned that measures are coming forward in the context of that directive, but she can use her existing powers where it is necessary and proportionate to address issues of online targeting.

I refer to a situation where there is a need to investigate, for example. This is the kind of debate that arises in the context of GDPR all the time. If there is a need to investigate and prosecute, then it is permissible to access appropriate material but it is not permissible to engage in sweeping exercises to find content that may potentially end up being relevant to an offence. There must be a reason and a necessity which meets a test of proportionality. It is not permissible, for example, to examine all, or even large swathes, of content in someone’s interpersonal communications, such as all someone's WhatsApp messages, just because a particular type of content is being sought. It is necessary to have reasonable grounds to do so and it must be necessary and proportionate for an investigation and prosecution.

As it stands, this legislation is framed so that it relates "to content that falls within one of the offence-specific categories". Therefore, it would be possible to have a situation whereby interpersonal communications are subject to large-scale surveillance because of a rationale relating to an offence. For example, hashing involves putting certain words in a search and then scanning a huge quantity of data to see if those specific words appear anywhere. Then there is follow-up, which creates a dynamic that falls outside proportionality under the GDPR.In the data services directive, it has been recognised that such practices are not appropriate.I am worried about the way that it is framed in this Bill as it is a very wide sweep. One could say we are looking for keywords that relate to something that might be an offence and that would cover the “relates to content that falls within”, because one is effectively going to look at content in the sweep rather than investigating specific content or whatever. I have other related amendments and this is one of those areas where warrants and things like that are inappropriate. Am I correct that amendment No. 185 is not grouped with this amendment so amendment No. 184 stands alone?