The chilling effect on privacy and other rights by actual, feared and mandatory surveillance cannot be underestimated, a High Court judge said in a ruling this week on the State's hoarding of people's telephone data which followed a case taken by convicted murderer Graham Dwyer.
Citing George Orwell’s dystopian novel 1984, Mr Justice Tony O’Connor said the State should “tread carefully” when encroaching on people’s dignity and privacy by accessing highly sensitive information.
The Court of Justice of the European Union has ruled against the blanket, as against targeted, collection by the State of sensitive data about people’s telephone use.
However, Ireland has argued that it does not make sense to say that the only data that can be retained should be that of people the State has concerns about, as criminal investigations can often lead to people coming to the Garda’s attention for the first time.
The convoluted legal situation that has arisen because of the position taken by the Court of Justice forms the backdrop to the ruling in the case taken by Dwyer, who has challenged the legality of the State’s data retention laws.
It has been known for some time that the Irish law was probably not compliant with EU court rulings and new legislation is being drafted.
Phone operators
Dwyer was found guilty in 2015 of the murder of childcare worker Elaine O’Hara, whose remains were found at Killakee Mountain, Rathfarnham, Dublin, in September 2013.
The evidence used to convict Dwyer included information accessed by the Garda investigation team using data retention rules that require phone operators to retain information for two years.
The Garda has a Telecoms Liaison Unit (TLU) which receives hundreds of requests every month for access to highly personal information which can disclose a person’s movements and who they have been in contact with over fixed-line and mobile phones.
The use of the system has proven to be highly valuable in investigations into serious crime. People whose data has been accessed do not have any right to be informed of the fact. The bulk of the access remains a secret.
In his judgment, Mr Justice O’Connor noted that the officer in charge of the TLU, who is obliged to ensure that all requests are necessary, appropriate and proportional, might receive a request for access from a higher-ranking officer who is leading an investigation. This “does not fit with the concept of an independent authority”.
Likewise the judge noted that the system does not allow for citizens whose privacy has been encroached upon to find out that this has occurred. There are no adequate legislative guarantees against abuse and “too much is left to those who implement and utilise the access provisions”.
Internet data
The use of text messages is “vastly decreasing” because younger people tend to use social media platforms for communication, and so retained telephone data is becoming less useful for those investigating crime, Mr Justice O’Connor was told. Internet data is retained for one year as against the two years that applies for telephone data.
The data retention system, which is also used for State security and other reasons, will remain in place despite this week’s ruling.
Whether Mr Justice O’Connor’s ruling will assist Dwyer in his appeal against his conviction remains to be seen.
Mr Justice O’Connor heard argument that surveillance only occurs when retained data is actually accessed and that it is the control over how access is achieved that is the key issue.
The Irish Human Rights and Equality Commission has said it believes that legally robust safeguards would bolster the use of communications evidence in criminal trials. “It will closely follow any legislative progress in this regard,” it said in a statement in the wake of this week’s judgment.