Conor Lally: Data retention laws struck down across Europe

The powers of the Garda and other investigative State agencies to access data retained by telephone and internet service providers will come to an end if the Irish courts follow the example of other jurisdictions.

In a large number of European countries, laws providing for the retention of data on entire populations have been struck down in recent years.

The legislation has been found to be unconstitutional or contrary to fundamental rights following a decision by the European Court of Justice in April 2014 which declared as invalid the European data retention directive.

The ruling found the mass and automatic retention of data about entire populations was not proportionate or targeted and was cause of an unnecessary chilling effect.

Since then, the retaining of data by service providers in a growing number of member states has come to an end. These include Bulgaria, Slovakia, Austria, Belgium, Romania, Germany and Slovenia.

Irish advocacy group Digital Rights Ireland (DRI) was one of the parties to take the case and is currently challenging the retention of data by telecoms companies.

Power

If the

High Court

follows the example of the courts across

Europe

, the controversy around the Garda and organisations like the

Garda Síochána

Ombudsman Commission having the power to grant itself access to retained data would be no more.

DRI chair TJ McIntyre said that in the UK, the system of retaining data and of a large number of agencies being able to access it remained in place only because a ruling there to strike down the laws was being challenged.

However, in the UK an office of the interception of communications commission has been established.

It is to telephone and internet accessing and surveillance in the UK as Hiqa is to those parts of the health service it examines in the Republic.

An annual report is published each year, which ran to more than 100 pages last year. The commissioner not only sets out what is allowed under British surveillance and interception laws, but how frequently they are used.

The office is also charged with testing the claims made when British agencies with snooping powers makes claim about why applications for data and records have been made. Last year, it found many shortcomings in how procedures were operating; making 400 recommendations .

In the Republic, some of the judges appointed to ensure the powers to access retained data provided for under Irish law were being used properly produced annual reports of one page.