Helen McEntee (Meath East, Fine Gael) | Oireachtas source

It is a similar argument to the previous one. It is a question of what the court has ruled and what categories it has deemed general data to fall under. Specifically, the court concluded that the interference entailed by the retention of user data cannot be classified as "serious". That is what it set out in the ruling. It went on to state that legislative measures concerning the processing of user data are capable of being justified by the objective of preventing, investigating, detecting and prosecuting criminal offences in general and not just serious criminal offences. To stress, it has to be a criminal offence. A road traffic offence is not a criminal offence. It has to be a criminal offence, not just a minor misdemeanour that is not a criminal offence.

Based on the pre-legislative scrutiny that we engaged in, albeit in a short period of time, we changed the requirement for an inspector to be able to seek to access this information to the level of superintendent, which is an acknowledgement that not everybody should be able to access it. It must be someone at the level of superintendent who can actually seek to access this data or information.It cannot be applied retrospectively or used to scan for previous cases. It is specific to a particular case involving a criminal offence rather than any other type of situation. That is clear from the ruling. The retention of user data cannot be classified as serious. There is also the fact that what has been outlined includes preventing, investigating, detecting and prosecuting criminal offences in general; not just serious criminal offences. We have tried to stick to the letter of the law as set down not just in 2020 but also in April.

As regards the second amendment in the grouping, what we are trying to do, insofar as is possible, is to replicate existing powers assigned to the Garda Síochána, the Defence Forces, the Revenue Commissioners and the Competition and Consumer Protection Commission to access user data retained by service providers. As Senator Ward outlined, we are replicating what is there already. It is on this basis that I cannot accept the amendments. We are very much sticking in line with what was set out in the court ruling in terms of what is deemed serious and what is not but we are trying to add in even more safeguards, such as that it must be a superintendent who seeks this information. I reassure Senators that this is not something that can be used to just access a database and generally scan information in order to use that against an individual or, potentially, to look at previous cases. It has to be specific to the criminal offence that is being investigated.