New mechanisms to retain data to protect national security and tackle serious crime under draft Bill published by Minister McEntee
- Mechanism for general retention of data for purposes of national security
- Preservation and Access to specified data for both security and law enforcement
- Minister McEntee clear that Gardaí must not have their hands tied behind their backs
21 June 2022
The Minister for Justice, Helen McEntee TD, has today published the General Scheme for the Communications (Retention of Data) (Amendment) Bill 2022.
The General Scheme provides that general and indiscriminate retention of communications traffic and location data can only be permitted on national security grounds, where approved by a designated judge.
In addition, the General Scheme provides for a system of preservation and production orders to facilitate preservation of and access to specified communications data held by service providers for both national security and for the investigation of serious crime, where permitted by an authorising judge.
A preservation order will act as a “quick freeze” requiring service providers to retain any specified data they hold at a particular point in time for a period.
A production order will allow access to specified data held by a service provider for commercial or other reasons, where such access is necessary for national security or law enforcement purposes. The effect of a production order will be that a service provider must immediately take steps to produce and hand over to the relevant state agency the data described in the order made by an authorised judge.
Both traffic and location data retained for national security purposes and subscriber data, retained for national security or law enforcement purposes, will be retained for 12 months.
The General Scheme is consistent with European Court of Justice rulings in this area.
The Minister said:
“As I stated last month when I received Cabinet permission to draft this legislation, it is vital that we do not have a situation where An Garda Síochána have their hands tied behind their backs and Gardaí must be fully equipped with strong laws and modern technology.
There should always be safeguards and protections when it comes to accessing data, but we must not allow the balance to shift too far away from keeping people safe and fighting crime and the Government is taking urgent action to ensure that the appropriate legislation is in place.
It is my intention, with the assistance of the Attorney General and his officials, to return to Government next week seeking approval to publish the Bill. This urgency is unavoidable given the need for legal certainty for communications service providers and state agencies on what obligations apply to the retention of communications data, which is vital for law enforcement and national security.
In addition to this urgent Bill, I intend to bring forward a more comprehensive proposal later in the year to address wider reforms and a more consolidated legal framework in this area.”
Notes to Editor:
- The General Scheme can be accessed at the following link: www.justice.ie/en/JELR/Pages/PB22000116
- The proposed legislation is without prejudice to the State’s current appeal which is before the Supreme Court of a High Court ruling relating to the Communications (Retention of Data) Act 2011
- In respect of national security, the Scheme provides that the Minister for Justice must first carry out an assessment of threats to the security of the State. If the Minister deems the threat to be such as would require the retention of traffic and location data, referred to in this Bill as “Schedule 2 data”, he or she may apply to a designated judge of the High Court for an order requiring service providers to retain that data. Access to that data will require prior judicial authorisation, or in urgent circumstances, approval by a senior officer of An Garda Síochána or the Defence Forces. Use of the urgency procedure must be notified to an authorising judge who will review whether the urgency procedure was appropriate.
- “Preservation Orders” will require the preservation of specified electronic data in connection with specific persons, locations or other indicators (e.g. mobile phone numbers). A Preservation Order will not in itself require the granting of access to data.
- “Production Orders” will require the gathering and submission of specified data in a person’s possession or control to An Garda Síochána and other agencies, and may include data which may already be the subject of a Preservation Order.
- Under the General Scheme a Preservation Order may be obtained by an Garda Síochána, the Defence Forces, the Revenue Commissioners or the Competition and Consumer Protection Commission for defined reasons where approved by an authorised judge, including the need to respond to serious offences, national security and the saving of a human life. All four agencies can access data under the 2011 Act.
- A Production Order is a court authorised means of accessing limited and specified data, where it is required in the context of a criminal investigation. Under the General Scheme, a Production Order, may be obtained by an Garda Síochána, the Defence Forces, the Revenue Commissioners or the Competition and Consumer Protection Commission for defined reasons where approved by an authorised judge.
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