The Garda will be able to capture large quantities of mobile phone data in public places and across large areas under new investigation methods being introduced in the wake of a European Court ruling in favour of convicted murderer Graham Dwyer.
The so-called “quick freeze” of data offers gardaí strong and wide-ranging options to indiscriminately capture data for use as evidence in cases or as an investigative tool.
While it was feared the Dwyer ruling would greatly restrict the investigation of crime in the State, the ability to perform “quick freezes” will provide gardaí with additional powers to use phone data to identify and investigate suspects.
Those powers will result in the phone records of tens of thousands of people, in some cases, being frozen as part of criminal investigation to allow gardaí sift through the metadata to find evidence.
Mobile phone operators have retained phone data – call, text and location records – for up to two years in Ireland. During the investigation of crime, including minor offences, gardaí were securing access to retained data generated on the phones of suspects and other persons of interest.
However, the European Court of Justice two weeks ago ruled this retention of data by mobile phone operators – and gardaí being able to access it – was unlawful.
Under the ruling, data can still be retained by mobile phone operators and gardaí can still access it, but for shorter periods. While the reduced window will somewhat impact Garda investigations, the “quick freeze” practices are expected to bolster investigations.
Under so-called “quick capture” techniques, if a crime was committed at a public event, all the telephone activity in that area could be frozen at the request of the Garda, according to sources familiar with the technique.
While most of the data generated would be related to the public with no connection whatsoever to the crime, the investigation would focus in on records from phones regarded as relevant to the inquiry.
In other incidents, all of the data generated between different phone masts, even if it was over a very large area, could also be frozen, sources said. This form of “quick freeze” would secure a snap shot of who was in the area around the time of the crime under investigation and how they were communicating.
Garda sources and others familiar with data retention issues noted that while the Dwyer ruling would restrict the Garda force from trawling through retained data, the European court had specifically pointed to other very strong powers that could be used, namely “quick freeze”.
“If a crime happens, whether it’s a serious sexual assault or something that’s pre-planned like a shooting, gardaí would be able to get a quick freeze of the mobile phone in that area at the time,” said once source.
“And when they identify which phones are linked to the suspects they’d also be able to apply for their data for the previous few weeks, if they needed to. But they won’t be able to go back over data for up to two years because the Dwyer ruling confirms data can’t be retained [for mobile phone operators] for that long.”
A legal source said the “quick freeze” or “expedited retention” of data could apply when gardaí were investigating serious crimes or matters of national security. He added that it would apply only to serious crimes and that the detail of how the process would work would become clear only when legislation providing for it was enacted.