Seanad report: A Bill was amended to require telecommunications bodies to keep electronic data in their possession for three years.
Moving the amendment to the Criminal Justice (Terrorist Offences) Bill, the Minister for Justice, Equality and Law Reform, Mr McDowell said that the requirement was in line with directions given by the then minister for public enterprise in April 2002.
However, the Data Protection Commissioner had recently issued orders obliging providers of these services, with effect from May 1st next, to erase data that was more than six-months-old.
In the absence of any contrary action being taken, there could be a serious undermining of the ability of the Garda to investigate criminal activity including terrorism, and to protect the security of the State. What was being put forward was a statutory basis to replace the existing one.
It would embody a system of protections analogous to those which applied at present in respect of the tapping of phones and the opening of mail in the post. The Minister stressed that the amendment dealt with electronic data on phone calls that were made.
Dr Maurice Hayes (Ind): "Surely the content is not recorded?"
The Minister said he presumed that it was not. The law in regard to content required ministerial intervention.
Mr McDowell said it appeared to him that if they were giving a statutory basis for the retention of data they should, at the very least, insert the two judicial protections to ensure that somebody who thought that their data had been improperly accessed could make a complaint to a judicial figure and have their situation investigated.
"Even if there is no controversy and nobody is aware of it, there is a person whose job it is to go over all these transactions and to ensure it is not being used by the senior Garda officers who are given the power to apply for this kind of data. That is the balance that is being struck here."
Ms Joanna Tuffy (Lab) said that the legislation would enable the Garda Commissioner to request all service providers to keep the data concerned. If so, did that not mean that virtually every person who used the services of telecommunications companies would have a possible grievance and make a complaint?
Ms Tuffy said that as legislators, they needed to know that the definition of data did not include recordings.
The Minister said he would seek to tighten up the provision to ensure that it did not relate to the content of communications.