Lynn Ruane (Independent) | Oireachtas source

I move amendment No. 4:

In page 5, line 35, to delete "a period of one year, or".

Amendments Nos. 4 to 7, inclusive, seek to address the retention periods and safeguards in respect of data retention. Currently, the mechanism in the Bill provides for an automatic period of data retention of one year, which may be varied by the Minister or an authorising judge, depending on the type of data.

We need to be clear on this. The European Court of Justice ruling was clear that the duration of each data retention measure must be limited in time to what is strictly necessary and that such measures, while they can be renewed, cannot be systematic in nature. As the Irish Council for Civil Liberties, ICCL and others have highlighted, the current draft of the Bill is not in keeping with the spirit of this ruling, and the legislation may well be deemed illegal on these grounds if it is referred to the Court of Justice of the European Union, CJEU, again.

Each case must be individually assessed and the period of data retention should be prescribed specifically for the necessities of each case. While I acknowledge the Bill goes some way towards acknowledging these requirements, and grants power to the Minister and the judges in respect of varying the period of retention, there is still a question mark over the legality of the automatic period of one year in the absence of other instruction by the Minister or a judge. This implies that the majority of cases would automatically get a period of one-year retention unless otherwise specified, and this goes directly against the CJEU ruling that these periods cannot be systematic in nature. I urge the Minister to engage on this and be cautious about it because it is pointless to pass emergency legislation that would potentially also be illegal. Why replace one illegal Act with another?

Amendments Nos. 4, 6 and 7 all attempt to remove references to the automatic retention period of one year. These three amendments would delete the one-year period, and would require that a specific data retention period must be decided by the Minister or a judge in every case. If accepted, our amendments would remove the automatic one-year retention period, and thus ensure the Bill is in line with the CJEU's ruling. Amendment No. 5 is similar in that it reiterates that a judge must specify the data retention period in every case, not simply assign an automatic one-year period.

These amendments may be the difference between this House passing a legal or an illegal Bill. If the Minister still believes this automatic one-year retention period is legal or necessary, I hope she can clarify why that is.

I am also concerned by the different powers granted in the Bill in respect of "user data" versus "Schedule 2 data". From my reading of the Bill, it seems that these types of data are similar, and that both relate to names, addresses and Internet protocol, IP, addresses of users. Could the Minister clarify how these categories of data are substantively different, and whether we should be concerned about the wider powers granted in respect of "user data"?