The Department of Communications, Marine & Natural Resources has expressed grave concerns about the negative impact and high costs to businesses of the Justice Department's proposed data retention Bill, it has emerged.
According to comments, seen by The Irish Times, made last September on a confidential preliminary draft of the Bill, the Department of Communications also believes "the proposed retention period of three years might be considered excessive from the point of view of civil liberties and an individual's right to privacy".
In another document, obtained under the Freedom of Information (FOI) Act, the Department of Communications suggests that "businesses may also have greater concerns regarding confidentiality of sensitive business communications", so officials should consider retaining only citizens' traffic data.
Industry experts say it is unclear how such data could be differentiated.
The legislation would require telecoms operators to store traffic data about fax, mobile and phone calls, and email and internet usage, for three years - longer than any other EU state. Traffic data reveal who made and received calls, when, where to, and for how long, with similar information retained on emails and web surfing. The content of calls and emails is not preserved.
The Garda Síochána says it needs the data for investigations.
New correspondence received under the FOI reveals that, in January, Data Protection Commissioner Mr Joe Meade threatened for a third time to take the Government to the High Court for a judicial review of a controversial Cabinet direction passed in April 2002.
The direction, which was not revealed to Oireachtas members, ordered the secret retention of all Irish citizens' call records. After postponing two earlier threats, Mr Meade said he would begin proceedings if legislation were not in place by May 31st, 2003.
The correspondence shows that, after seeing a copy of the direction, Mr Meade told the Department of Communications secretary general Mr Brendan Tuohy: "I am greatly concerned that the Minister should seek to effect a significant derogation from the rights of data subjects \ merely by way of an administrative direction issued by the Minister.I note with concern that it is intended that this ministerial direction should remain confidential and secret from data subjects."
The direction has been condemned by the international legal counsel of well-known Washington DC privacy and civil rights group EPIC (Electronic Privacy Information Centre) and by the Irish Council for Civil Liberties.
Documents received under the FOI reveal that Mr Meade obtained legal advice advising the direction was "in breach of Article 15.2.1 of the Constitution", lacked "the character of law" and was "in breach of the principles of Community law".
The Department of Justice has not yet published a draft Bill. It initially promised Mr Meade that legislation would be in place by autumn 2002.
According to the Department of Communications' comments, the bill "is likely to impose significant costs on [telecoms\] operators and service providers. This is a matter of considerable concern to the Department in light of the global downturn in the information and communications technologies sector."
