It was only a few years ago that Wikileaks helped the National Security Agency (NSA) make the headlines with leaks of indiscriminate mass surveillance of the American population. At the time, the leaks showed that the NSA collected, and retained, information from citizens’ mobile phones and laptops, without any major judicial oversight. Although, they did at least have some form of legal backing, however minor.
Not to be outdone, the Irish Government has now been shown to be indulging in the same form of operation; on Tuesday, October 3 former chief justice John Murray issued a report outlining how the current Minister for Justice Charlie Flanagan TD, several of his predecessors, as well as all of their departments have operated an indiscriminate form of mass surveillance upon the Irish citizenry.
Under EU law, Mr. Murray argues, this form of ongoing mass surveillance is illegal. But first, let’s get a bit of background information; in January of 2016, it was found that the Garda Síochána Ombudsman Commission (GSOC) had been tapering with the phone records of a number of journalists in order to find out their sources within An Garda Síochána. All of this without a clear legal backing, or much in the way of any kind of backing – at least, very little public support.
In response, then Minister for Justice Frances Fitzgerald issued Mr. Murray an order to examine the legal framework surrounding such issues; in particular, to examine the Communications (Retention of Data) Act 2011. Said law forces telephone companies and internet service providers (ISPs) to retain data on all of their customers for up to two years. This is where the bones of contention have begun to emerge.
In short, the retention and storage of said data by the ISPs and telephone companies – as the law dictates – is not only a massive breach of citizens’ privacy, but a breach of EU law for same. In Mr. Murray’s report, he says that the law dictates:
“…[A] form of mass surveillance of virtually the entire population of the State, involving the retention and storage of historic data, other than actual content, pertaining to every electronic communication, in any form, made by anyone and everyone at any time…In essence this means the retention of all communication data not going explicitly to content: in other words, data pertaining to such matters such as the date, time and location of a telephone call.”
Despite how invasive the Communications (Retention of Data) Act 2011 is – not to mention how it has been enacted and used – the report also highlights how it falls short of almost every relevant European law and judgement in recent years, in regards to privacy. In essence, both the European Court of Human Rights and the European Court of Justice have ruled against these kinds of unwarranted and indiscriminate forms of mass surveillance, both in principal and in practice.
But how was it that Ireland got to the position where Mr. Murray needed to issue a report on the matter? It’s complicated, but let’s cover the basics. In 2005 the civil rights group Digital Rights Ireland started High Court proceedings challenging Irish and European data retention laws; in 2010 the High Court agreed that the case “Raised important constitutional issues”; in 2014 Digital Rights Ireland succeeded in part of that case before the European Court of Justice; and the case has since returned to the High Court for a full hearing.
Each of these developments should have prompted reform; instead, successive ministers – including Dermot Ahern, Alan Shatter and Frances Fitzgerald – have adopted a wait-and-see position. Essentially, they shrugged it off and hoped their successor would deal with it.
And that brings us to now, where we have a system that – as Mr. Murray describes it – regulates to collect:
“…a vast amount of private information pertaining to the personal communications of virtually everyone in the State is now retained without the consent of those affected … Although routinely referred to in anodyne terms as ‘data’ or ‘retained data’, this vast store of private information touches every aspect of an individual’s private and professional communications profile over a lengthy period.”
But, this could have been wholly avoided years ago, when the Communications (Retention of Data) Act 2011 was being drafted. By providing for universal rather than targeted surveillance the system falls at the first hurdle: the report noted that European case law “effectively sweeps the ground from under wholly indiscriminate mass surveillance schemes of the kind established by the 2011 Act,” as Mr. Murray suggests.
As of yet, there’s yet to be word on when – or more likely, if – the law is set to be changed, as per E.U rulings would dictate. If the EU rulings on Apple’s Irish taxes are to be an indicator, it’ll be a long time coming.
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