Thurles Information

• Communications (Interception and Lawful Access) Bill will update and replace the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993
• Legislation to provide for principle that lawful interception powers to address serious crime and security threats apply to all forms of communications
• Legislation will include new legal basis for the use of covert surveillance software as an alternative means of lawful interception
• Provision for the use of electronic scanning equipment which can locate and record identifier data from mobile devices when deployed in specific areas
• Robust legal safeguards, including judicial authorisation of interception requests, to provide assurance
• Structures to be included for the maximum possible degree of technical cooperation between state agencies and communication service providers

The Irish government has given their approval to develop strengthened legislation on the lawful interception of communications. This legislation is needed to ensure that the law in this area is up-to-date and can yield intelligence that is vital for dealing with serious criminality and threats to the security of the State.

Officials in the Department of Justice will now work with the Attorney General’s Office, other Departments and State agencies to develop the General Scheme of the new legislation.

Key Features of Proposed Reform of Lawful Interception Legislation.

• (1) A new Communications (Interception and Lawful Access) Bill to update and replace the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, which predates the telecoms revolution of the last 20 years.

The 1993 Act provides for the interception of postal packets (opening, delaying or preventing delivery) and telecommunications messages (listening or recording in the course of transmission) for the purposes of both criminal investigation and in the interests of the security of the State.
At present, the Act allows for interception applications to be made to the Minister for the purpose of criminal investigation (applications from the Garda Commissioner or the Police Ombudsman) or in the interests of the security of the State (applications from the Garda Commissioner or the Chief of Staff of the Defence Forces). The need for an overhaul of the 1993 Act has long been identified, including in the annual reviews of its operation by Designated Judges under section 8 of the Act. These concerns relate to outmoded nature of the Act (only applicable to traditional landline and mobile communication) and the need to replace it with a modern legal framework that encompasses all forms of digital communications now in use.

• (2) A clear statement of the general legal principle that lawful interception powers needed to address serious crime and security threats are applicable to all forms of communications.

The government proposes an updated legal framework which is flexible and includes comprehensive principles, policies and definitions to allow for lawful interception powers to be applied to any digital devices or services which can send or receive a communications message e.g. the “internet of things” and email / digital messaging services. The legislation will provide for a clear statement of general principle that lawful interception powers apply to all forms of communications, whether encrypted or not, and can be used to obtain either content data (the substance of a communication) or related “metadata” (data that provide information about a communication but not its content, such as phone call or email time and date, the sender / receiver of a communication, the geolocation of an electronic device or the source and destination IP address). The legislation will also apply to parcel delivery services.

The governments view is that effective lawful interception powers can be accompanied by the necessary privacy, encryption and digital security safeguards.

In June 2025, the EU Commission published a “Roadmap for lawful and effective access to data for law enforcement”, which stated that terrorism, organised crime, online fraud, drug trafficking, child sexual abuse, online sexual extortion, ransomware and many other crimes all leave digital traces. Around 85% of criminal investigations now rely on electronic evidence. Requests for data addressed to service providers tripled between 2017 and 2022 and the need for these data is constantly increasing. The Commission paper includes proposals to deliver a “technology roadmap” on encryption issues with expert input and emphasises the need to reconcile technology and lawful access concerns through industry standardisation activities. This EU initiative complements the Minister’s proposed approach to reforming the law on interception in Ireland and will inform the development of the General Scheme.

• (3) Improved international cooperation and meeting Council of Europe requirements.

The development of a modern interception framework will enhance the State’s capacity for international legal cooperation with other States. Ireland is a signatory to the EU Convention on Mutual Assistance, adopted in 2000. Under this regime, mutual assistance can only be approved if it would be authorised in a similar national case. Including all forms of communications in an updated interception framework in Ireland will ensure the State can both support and benefit from an increased range of interception requests under this Convention.

The proposed General Scheme will also allow the State to meet its legal obligations under the 2001 Council of Europe Convention on Cybercrime (Budapest Convention). Article 20 of this Convention requires States to have the ability to collect or record traffic data associated with specified communications and Article 21 requires that States can intercept content data, in real-time, of specified communications transmitted by a computer system.

• (4) The inclusion of a new legal basis for the use of covert surveillance software as an alternative means of lawful interception to gain access to electronic devices and networks for the investigation of serious crime and threats to the security of the State.

The government also proposes to provide a legal basis for the use of covert surveillance software as an alternative means of lawful interception to gain access to electronic devices and networks for the investigation of serious crime and threats to the security of the State. This is used legally in other jurisdictions for a variety of purposes when necessary, such as gaining access to some or all of the data on an electronic device or network, covert recording of communications made using a device or disrupting the functioning of a personal or shared IT network being used for unlawful purposes. The government proposes to take into account a 2024 report from the European Commission for Democracy through Law to the Council of Europe (the Venice Commission) on this subject, “Report on a Rule of Law and Human Rights Compliant Regulation of Spyware”.

• (5) Provision for the use of electronic scanning equipment which can locate and record identifier data from mobile devices when deployed in specific areas.

The government proposes to include provisions in the General Scheme to allow for the use of scanning equipment in specific locations that can locate and record identifier data on mobile devices (International Mobile Subscriber Identifier and International Mobile Equipment Identifier) in use by individuals suspected of involvement in serious crime or threats to the security of the State. The use of such equipment can be of particular value in specific defined locations (e.g. outside a single property) in providing the technical information necessary to identify individuals of concern and the persons they are associating with from a crime or security perspective.

• (6) Robust legal safeguards, including judicial authorisation of interception requests, to provide assurance that lawful interception can only be permitted where lawfully authorised in specific cases and only where the circumstances meet a test of being necessary and proportionate to deal with issues relating to serious crime or threats to the security of the State.

At present, the government has responsibility for authorising interception requests under the 1993 Act. It is proposed that the General Scheme will maintain a role for the government, but will also introduce judicial authorisation of interception requests for the first time.

In addition, it is proposed that agencies making an application under the new legislation will be under an explicit statutory obligation to outline any issues that may arise with regard to privileged material. The aim is to ensure that the authorising Judge is on notice of the possibility of such issues and in a position to consider whether any conditions or directions might be needed in such cases.

The General Scheme will also confirm the role of the Independent Examiner for Security Legislation (already established under Part 7 of the Policing, Security and Community Safety Act 2024) in providing ongoing monitoring and oversight of the proposed new legislation, on the same basis as currently applies for the 1993 Act. Provision will also be made for an independent complaints procedure for the use of all the legal powers concerned, similar to Complaints Referee process in section 9 of the 1993 Act.

• (7) Mechanisms to promote technical cooperation and sharing of best practice.

The government notes that this new legal framework will require technical expertise to ensure that its design is guided by practical co-operation and best practices. The General Scheme will include structures to promote the maximum possible degree of technical cooperation between state agencies and communication service providers, including for the drawing up of statutory guidance, Codes of Practice, and regulations which will inform and guide the operation of the legislation in practice.