THE RANGE of criminal investigations for which the Garda will be able to request e-mail and internet data retained by internet service providers has been broadened by the Government.
In the latest draft of the statutory instrument implementing European directives on data retention, which has been seen by The Irish Times, "serious offences" would be defined as "any offence for which a person . . . could receive a maximum custodial sentence of six months".
This is a broader definition than that in Section 1 of the Bail Act 1997, which defines a "serious offence" as an arrestable offence with a minimum prison sentence of five years.
Offences that could now be deemed "serious" under the statutory instrument would include public order offences, such as refusing to move on when asked to do so by a garda, or minor assault.
The former minister for justice Michael McDowell had vowed that retained data would only be used in the prosecution of serious criminal and terrorism cases.
The draft statutory instrument would also apply the proposed new definition of serious offences to the current data retention regime on call data introduced in the Criminal Justice (Terrorist Offences) Act 2005.
In an apparent attempt to seek a compromise on retention more acceptable to the internet service providers - who would carry the cost of implementing it - the proposed legislation now seeks a 12-month retention period rather than the two years allowable under the EU directive.
Under the draft statutory instrument, retained data would include names of those who sent and received e-mails, computer addresses, the location of computer users, the times a user logged on and off a computer, and the size of files and e-mails sent and received, but not the content of e-mails.
Currently, the Garda can obtain telephone and mobile call data with no restrictions at all, a situation that has been repeatedly criticised by Data Protection Commissioner Billy Hawkes and national and international privacy advocacy groups.
"This SI is clearly undermining all the normal legal understanding of what constitutes a serious offence," said Ivana Bacik, senator and Reid professor of criminal law at Trinity College Dublin.
"If they are making a change like that, it should be brought in through primary legislation," the Independent senator said.
Unlike most EU states, Ireland did not ask for a derogation on implementing the directive, so must now bring it into effect by statutory instrument.
The Garda Commissioner must also make a retention order rather than a superintendent, as under the 2005 Act.
The Garda Commissioner will also be required to submit an annual report to the Minister for Justice detailing how many requests were made for retained data, the number of times the request for a disclosure of data could not be met, and the time between the retention of the data and the disclosure request.
