Human rights concerns are at the heart of a challenge to controversial laws on the retention of phone call details, writes Karlin Lillington

In an expression of concern about the Republic's controversial laws on the retention of phone call details, the Irish Human Rights Commission (IHRC) is applying to be made amicus curiae - a friend of the court - in a case taken against the Government on the issue by privacy advocates Digital Rights Ireland (DRI).

The High Court will hear the application on Monday. The HRC to date has only made such an application in five cases which it believes have had significant human rights implications.

According to legal observers, the application will be seen to bolster the case for DRI, a small privacy organisation chaired by University College Dublin lecturer and barrister TJ McIntyre.

In a policy document, the IHRC says that it will make a request for amicus curiae status in cases after considering "the importance of the human rights issue or issues raised by the proceedings; the extent to which the case raises an issue or issues, the determination of which may affect to a significant extent a human right or human rights of these who are not parties to the proceedings; [ and] the extent to which the human rights issue or issues raised are central to the determination of the case."

DRI has argued that the 2006 retention law, which initially was secretly brought in through a Cabinet direction, and then confirmed through a last-minute amendment to a Bill debated before a nearly empty Oireachtas, was not introduced with adequate public scrutiny, and is excessive in its provisions.

DRI also argues that the law breaches citizens' human rights and privacy rights because it effectively submits the entire population to a form of surveillance in advance of any crime having been committed.

It also argues that the average citizen would have difficulty understanding the privacy and human rights implications of the law because of the technical and legal knowledge required to fully appreciate its impact.

The law requires that details about every phone call made by anyone within the Republic, including children, be stored for three years. The details include who made the call, to whom, when, from where, and how long the call lasted. Privacy advocates have expressed particular concern that location records for children are being stored and could reveal daily schedules.

Data protection commissioners across the EU have argued that a six-month retention period, which fits with general data protection policies, is adequate for the needs of law enforcement.

Meanwhile Europe has introduced an equally controversial EU-wide version of the law - spearheaded by the Republic, the UK, France and Sweden - that will require states to also retain similar details about every e-mail sent by its citizens, and all web usage activity.

The DRI's position is understood to be an implicit challenge to the legality of the EU law, as at least some elements of the Irish case would be expected to be referred to the European Court of Justice.

When the European law was passed, many MEPs and privacy organisations predicted it would eventually be challenged on human rights grounds.

Irish Data Protection Commissioner Billy Hawkes has repeatedly complained that despite promises from former minister for justice Michael McDowell that retained data would only ever be accessible for serious crime and terrorism case, no controls have been placed on Garda use of call data.

He revealed earlier this year that more than 10,000 applications had been made in less than 18 months for call data records. Call data currently can be obtained even for misdemeanours such as riding a bicycle without lights, he has said.

Several leading business leaders in the Republic, including Iona technologies founder Dr Chris Horn, Microsoft managing director Joe Macri, and Oracle Ireland director Paul O'Riordan, have expressed alarm at the scope of the Irish legislation and its potential implication for the Republic's business climate.

Macri has said: "Irish legislation is going beyond what is required from an EU perspective and is going to put significant additional costs on businesses from an administrative and a capital investment perspective.

"While we respect and understand the needs and concerns of the law enforcement agencies, there is also a need to take personal privacy concerns and the broader needs of business into consideration."

Dr Horn has said: "Businesses have a right in particular to protect themselves against accidental disclosure of commercially sensitive information and industrial espionage.

"Given the context of poorly managed IT projects by the State, what confidence can the Irish public and businesses have that agencies of this State, and companies by law acting on their behalf, can adequately gather and in particular protect highly sensitive information?"

McIntyre says DRI is taking the case "on the issue of principle. The Government has introduced laws that require telecommunications companies to file all their information on customers whether or not there's any reason to do so and hold those records for an excessive length of time. We are arguing the principle that mass surveillance is never appropriate."

McGarr Solicitors are representing DRI in the case.