Taking on Big Brother

An organisation is taking a case against the government regarding legislation which allows for the retention of data on individuals by communications providers. By Tom Rowe

Another date has been set for the government to present their defense to the High Court in a case brought by Irish civil rights group Digital Rights Ireland (DRI). The group, made up of professionals working in law and technology, is challenging the government's right to carry out what they call “mass surveillance”, by which they mean the retention of data on individuals.

After previous delays, the government had agreed to present their defence to the High Court by 26 March, but failed to do so. Further dates were laid down and the defence was finally presented last week. A trial date will soon be set. The defendants in the case are the Minister for Communications, Marine and Natural Resources, the Minister for Justice, Equality and Law Reform, the Commissioner for the Garda Siochana, Ireland and the Attorney General.

Irish legislation allowing for the retention of and access to communications data by the authorities was brought through the Dáil with little scrutiny, as an amendment to the Criminal Justice (Terrorist Offences) Act 2005, on a day when few TDs were present in February 2005. DRI maintains that the legislation breaches people's constitutional rights, and may even breach their human rights under EU law.

In its case against the government, DRI is also objecting to aspects of the EU Data Retention Directive. The EU formally adopted the directive in March 2006, and all member states are due to introduce it by September 2007. When functioning, the directive would give all EU states similar powers to the Irish authorities, albeit with modifications such as a shorter retention periods. The directive requires that member states ensure that communications providers, such as phone companies or internet service providers, retain data for a period of between six months and two years. This data would allow authorities to trace and identify the source and destination of a communication, identify the date, time, duration, and type of communication, as well as the communication device and location of mobile communication equipment.

According to DRI Chairman and UCD law lecturer TJ McIntyre, “These laws require telephone companies and internet service providers to spy on all customers, logging their movements, their telephone calls, their emails and their internet access, and to store that information for up to three years. This information can then be accessed without any court order or other adequate safeguards.”

DRI director Antoin O'Lachtnain points out that they have no problem with “data preservation” by authorities, as long as it is on a specific suspect, with reasonable grounds.

Taking the case on behalf of DRI, McGarr solicitors believe that the Irish laws are unconstitutional under Article 40.3.2 of the Irish Constitution, which refers to the protection of citizens from injustice. It specifically says: “The state shall... protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name... of every citizen.” The solicitors also believe that the surveillance planned under the EU directive is a breach of human rights, as recognised in the European Convention on Human Rights, specifically under acts 6, 8 and 10, which refer to the presumption of innocence, privacy and freedom of expression.

According to the Data Protection Commissioner, gardaí have been accessing telecommunications data at a rate of 10,000 per year, or more than 30 times a day. At three years, Ireland has one of the longest retention periods in the world, although Poland recently proposed a 10-year period, and Italy retains data for four years. The legal action taken by DRI may have far-reaching implications for all EU states. The interest in the issue from civil rights groups around Europe always made it likely that a legal challenge would be taken. The case will almost certainly end up in the European Court of Justice. DRI will request this, as EU Human Rights law is partly the basis for their challenge. A decision in the European Court of Justice to overturn the Data Retention Directive would be binding on all states.