Thurles Information

New mechanisms to retain data to protect national security and tackle serious crime under draft Bill published by Minister McEntee.

• Mechanism for general retention of data for purposes of national security
• Preservation and Access to specified data for both security and law enforcement
• Minister McEntee clear that Gardaí must not have their hands tied behind their backs

The Minister for Justice, Mrs Helen McEntee TD, has today published the General Scheme for the Communications (Retention of Data) (Amendment) Bill 2022.

The General Scheme provides that general and indiscriminate retention of communications traffic and location data can only be permitted on national security grounds, where approved by a designated judge.

In addition, the General Scheme provides for a system of preservation and production orders to facilitate preservation of and access to specified communications data held by service providers for both national security and for the investigation of serious crime, where permitted by an authorising judge.

A preservation order will act as a “quick freeze” requiring service providers to retain any specified data they hold at a particular point in time for a period.

A production order will allow access to specified data held by a service provider for commercial or other reasons, where such access is necessary for national security or law enforcement purposes. The effect of a production order will be that a service provider must immediately take steps to produce and hand over to the relevant state agency the data described in the order made by an authorised judge.

Both traffic and location data retained for national security purposes and subscriber data, retained for national security or law enforcement purposes, will be retained for 12 months.

The General Scheme is consistent with European Court of Justice rulings in this area.

The Minister stated: “As I stated last month when I received Cabinet permission to draft this legislation, it is vital that we do not have a situation where An Garda Síochána have their hands tied behind their backs and Gardaí must be fully equipped with strong laws and modern technology.

There should always be safeguards and protections when it comes to accessing data, but we must not allow the balance to shift too far away from keeping people safe and fighting crime and the Government is taking urgent action to ensure that the appropriate legislation is in place.

It is my intention, with the assistance of the Attorney General and his officials, to return to Government next week seeking approval to publish the Bill. This urgency is unavoidable given the need for legal certainty for communications service providers and state agencies on what obligations apply to the retention of communications data, which is vital for law enforcement and national security.

In addition to this urgent Bill, I intend to bring forward a more comprehensive proposal later in the year to address wider reforms and a more consolidated legal framework in this area”.

Irish Minister for Justice Mrs Helen McEntee has today received the approval of the Cabinet to draft legislation to amend the Communications (Retention of Data) Act 2011, to address the impact of recent judgments of the European Court of Justice.

The proposed legislation is without prejudice to the State’s current appeal to the Supreme Court of a High Court ruling relating to the Act and will have two main objectives.

Firstly, it will provide for amendments to the current rules on general and indiscriminate retention of data from telephony and internet communications for national security purposes.

Secondly, provision will be made for new access provisions including two new types of orders which will strengthen the capacity of An Garda Síochána to secure and access all forms of electronic data for the purpose of specific criminal investigations or proceedings.

“Preservation Orders” will require the preservation of specified electronic data in connection with specific persons, locations or other indicators (e.g. mobile phone numbers). A Preservation Order will not in itself require the granting of access to data.

“Production Orders” will require the gathering and submission of specified data in a person’s possession or control to An Garda Síochána, and may include data which may already be the subject of a Preservation Order.

The Minister noted that the possibility of deploying such measures has been acknowledged by the Court of Justice in its rulings on data issues.

The Minister intends to return to Government to seek approval for the General Scheme of a Bill in the coming weeks, once the scope of the legal changes required has been confirmed.

In light of the urgent need to provide clarity in this area, the Minister intends to pass this legislation through the Houses of the Oireachtas, by the summer.

The Minister intends to bring forward wider reforms in the area of data retention later this year, to ensure An Garda Síochána have a robust legal framework to fight crime in the modern era.

These measures meet commitments made by the Minister in her Justice Plan 2022.

Following the Cabinet meeting, Minister McEntee said:
“The Government’s decision today allows for work to go forward to reflect the impact of judgments of the European Court of Justice.
While I do not want to comment on the specifics of cases which are before the courts, I have been clear that I do not want a situation where An Garda Síochána have their hands tied behind their backs.

Access to telecommunications data has become ever more important for the detection, investigation and prosecution of crime and for safeguarding the security of the State.

An Garda Síochána do hugely important work to keep us all safe, to investigate criminals and to ensure justice is done. They must be fully equipped with strong laws and modern technology to fight crime and keep us safe. We need to acknowledge that Gardaí require access to data to do their jobs and keep us safe, and that there are occasions when the interests of public safety, fighting crime and national security must override the absolute right to privacy.

There should always be safeguards and protections when it comes to accessing data, but we must not allow the balance to shift too far away from keeping people safe and fighting crime.

I intend to bring a General Scheme to Government for approval in the coming weeks, after which I will announce further detail of the intended legislation”.