Civil liberties at risk in the digital age

The Garda taping scandal is, by national and international standards, a scandal of shocking proportions. How could such large-scale, secretive, unwarranted surveillance have continued for years? And without anybody in law enforcement noting such taping would violate Irish and European laws on the interception of phone calls?

Trying to think in any logical way about this only serves to send the brain into a tailspin. No matter which angle I look at this from, it makes no sense. I envy Humpty Dumpty for famously being able to sometimes believe up to six impossible things before breakfast, but I just cannot manage it with the facts as presented.

This is why. For going on two decades now, the Department of Justice, the Garda Síochána, the Dáil, privacy advocates, the Office of the Data Protection Commissioner, legal experts, the media and interested individuals have engaged in public discussion about Ireland's laws concerning surveillance, particularly around the recording and retention of call data.

That’s because Ireland has, over time, considered and brought in newer laws intended to address (for better or worse) what the Garda and the Government have insisted was a serious gap between laws relating to phone call interceptions and those relating to digital data. Over and over, we have heard the argument that Ireland needed its laws on legally mandated surveillance and data retention brought into line with the digital age.

Analogue world
This is, of course, true – laws regarding the interception of phone calls were based on an analogue world of copper wires, not the internet. Law enforcement agencies do need appropriately defined access to data for some investigations. The devil is in the detail, especially with electronic data that can be easily intercepted and stored, and where the nature of the internet can make it hard to filter out vast streams of personal data that have nothing to do with investigations and should neither be intercepted nor stored.

The one constant in the public debate was the insistence from a succession of ministers for justice, and from the Garda, that new laws would be as careful and respectful of privacy and protocol as existing surveillance laws pertaining to phone interceptions.

Now, it turns out there seems to have been so little knowledge of existing surveillance laws that numerous Garda stations recorded conversations of all types, at will. And, astonishingly, there seems to have been so little oversight that the recording could go on for years without raising any concerns.

And as the letter from Martin Callinan to the Data Protection Commissioner, published this week, makes clear, the former Garda commissioner seemed more focused on the issue as one of data protection compliance rather than of large-scale violation of surveillance laws.

Impossible to reconcile
For me, these are the many impossible things that I just cannot hold together in my mind at the same time.

Anybody with even a basic working knowledge of the laws governing surveillance and data retention in this country would have known how outrageous and serious the situation is. Recording conversations in this way requires a warrant from the very highest level of the Garda or the courts. Yet, for years, recordings were made on a seemingly casual basis.

Many people must have been aware that such recordings were ongoing. Can it be that none of these people was aware of the appropriate laws governing this area, much less those around data protection?

The current situation makes an absolute mockery of claims over the years that data retention laws would be as respectful of a person’s rights and legal protections as existing surveillance laws.

How can anybody now believe the claims from law enforcement and the State that more easily obtainable and storable digital data would be handled with equal respect? Or that surveillance would only ever be used for the most serious crimes and terrorist activity?

And why should we believe they will be properly destroyed, when more than 2,000 recordings have been held by the Garda for years?

All of these revelations are deeply disillusioning to anybody who cares about civil and digital rights. They must be especially so to those members of the Garda Síochána who work hard to uphold the law, not undermine it.

Next week the European Court of Justice will rule on the legality of European data retention legislation, following a constitutional challenge by Digital Rights Ireland against Ireland’s laws. How ironic, given that it now seems the State cannot even be trusted to apply or enforce the quaint old laws on phone tapping.