State surveillance: disturbing revelations

The finding by former chief justice John Murray that the State is operating a system of data-retention that amounts to mass surveillance of the entire population is extremely disturbing. His report published this week is a damning indictment of the Department of Justice for allowing a range of surveillance practices to develop that are in clear breach of European law. It is entirely unacceptable that this situation has arisen, and successive governments must be held accountable for allowing it to develop unchecked.

In his 190-page review of the data protection system, which was presented to the Government in April but only published on Tuesday, Murray is unequivocal in his finding that the current statutory framework breaches European law. The Communications (Retention of Data) Act, which was passed as recently as 2011, involves the retention and storage of historic data including fixed-line and mobile telephone, internet communication and text messages, and is being done without the consent of those affected.

Murray discovered that the arrangement is universal and indiscriminate and, as such, also affects the retention and storage of journalists’ communications data. He pointed out that data relating to the time, date, location, destination and frequency of a journalist’s telephone calls is available and could be used to identify sources.

The current law forces telephone companies to log details of everyone’s communications and store that information for up to two years. It means that information relating to the activities of most of the population is retained without the consent of those affected, covering private and professional communications.

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The report says that the system, by providing for universal rather than targeted surveillance, fails to meet the standards set out in a number of recent judgments from both the European Court of Justice, which governs EU law, and the European Court of Human Rights. Another serious problem is that the law allows communications data to be accessed by gardaí without court approval and without any protections for journalists’ sources.

Minister for Justice Charlie Flanagan has moved to rectify the situation since the report was received by his department back in April. He has published the general scheme of a Bill which will replace the 2011 Act, but while most of the criticisms made by the former chief justice are covered in the new draft legislation, some of them have been ignored.

Gardaí need to have controlled access to communications data to protect society against terrorism and organised crime. But there is a need for a full debate on all the implications of the Murray report for society as a whole so that the replacement legislation is fit for purpose and meets the requirements of European law.