Islamist terrorism is a “significant cause of concern” for Ireland, along with threats from “lone wolf” attacks and “hostile state actors”, a former High Court judge responsible for reviewing security legislation has said.
Extreme right-wing and left-wing terrorism are also now real concerns for Ireland, according to the Independent Examiner of Security Legislation, George Birmingham.
At the same time, he said, the legislation designed to give Ireland’s investigative and security agencies the powers to minimise those threats was weak and outdated.
For example, there are no provisions in law for the interception of WhatsApp, Telegram and Snapchat messages, he noted. Furthermore, EU-imposed restrictions meant the Garda could not access mobile phone data stretching back more than 12 months. This greatly weakened the investigation of terrorism and other crimes.
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In his first formal remarks since taking up his role last year, Birmingham, president of the Court of Appeal until 2024, said the new terror threats had emerged after the era in which the IRA “in its various manifestations” was the biggest threat to the State.
“Now the threats are multipronged,” he said. “Today, Islamist terrorism is a significant cause of concern.”
The threat from Islamist terrorism was so pressing “because of the possibility of attacks within this jurisdiction”, following several “such attacks within the past number of years”. There was also “the possibility of an attack on a neighbouring jurisdiction being planned or launched from this State”.
“There is also unease about the activities of hostile state actors. The possibility of actions undertaken by so-called ‘lone wolves’, whether motivated by terrorist ideology or not, also requires consideration,” he said.
Birmingham was appointed to his post last year as part of Government reforms arising from recommendations by the Commission on the Future of Policing in Ireland. It recommended creating a new office to oversee the operation, and review, of security legislation.
Birmingham has made his remarks about the risk to State security and safety in his first annual report, which covers the period from last April, when his office became operational, to the end of the year.
Part of his role is to review and audit how the powers provided for under three pieces of legislation are used.
The legislation includes the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 as well as the Criminal Justice (Surveillance) Act 2009, which covers the use of tracking devices and other forms of surveillance, and the Communications (Retention of Data) Act 2011, dealing with mobile phone data.
The security and enforcement services in Ireland, including the Garda and Defence Forces and Fiosrú, which investigates complaints made about Garda members, have powers under the legislation.
Birmingham’s report was very critical of the 2011 legislation in that it placed no obligation on mobile phone service providers “to retain data for the purpose of access in the course of investigations of serious crime”.
It pointed to the role that accessing historic data had in the Garda’s ability to solve the 2012 murder by Graham Dwyer of Elaine O’Hara. However, because of the legal scenario imposed at EU level, historical data could now not be accessed in the same way it was during that investigation.
If a crime occurred now, but the offence or suspects only came to light years later, the inability to access relevant phone data would significantly “disadvantage” criminal or terrorist investigations, he said.
The Independent Examiner’s annual report also criticised the 2009 Act, saying it “predates modern digital communications”. It only provided for the interception of voice and other traditional messages sent by mobile phone but did not cover messaging apps and social media platforms.
The Act also does not provide for IMSI (International Mobile Subscriber Identity) catchers, which are legal in many other countries, the report said. These are a telephone eavesdropping devices used for intercepting mobile phone traffic. They also track location data, as well as identifying linked devices whose users may be working together and pose a risk.
“In relation to postal interceptions, the legislation only covers An Post and not couriers or other delivery services,” the report adds, highlighting a key legislative black spot around the work of courier firms, whose services have greatly expanded over the last 20 years.
