Surveillance powers have been evolving since early 1980s

As communications technology has expanded, so has the State’s power to snoop

The Garda Síochána Act 2005 established GSOC, to investigate complaints against gardaí, and it conferred on GSOC many of the same powers as the Garda. Photograph: Cyril Byrne.

The Garda Síochána Act 2005 established GSOC, to investigate complaints against gardaí, and it conferred on GSOC many of the same powers as the Garda. Photograph: Cyril Byrne.

 

The legislation empowering the State’s investigative bodies to search mobile phone records and other electronic communications began to evolve as far back as the early 1980s.

The internet and the mobile technology enjoyed in modern times could barely have been imagined by most in the Ireland of more than 30 years ago.

The interception of telecommunications was initially regulated by the Postal and Telecommunications Services Act 1983.

None of the provisions in the Act related to internet providers, limiting itself instead to the interception of messages carried by Telecom Éireann.

As communications became more advanced and the market proliferated and exponentially grew larger, amendments in 1999 extended the provisions of the 1983 Act to “licensed operators”. In 2003, that was widened further to cover messages transmitted by “authorised undertakings”.

At present, Irish law provides, under four Acts, for surveillance by investigative State agencies, such as the Garda, the Revenue Commissioners, the Garda Síochána Ombudsman Commission (GSOC) and the Defence Forces.

Parameters

The concept of transparency, even when citizens’ privacy had been breached in error or because of inaccurate intelligence, was ruled out in the 1993 legislation. In fact, those with knowledge of the interceptions were bound by a number of secrecy provisions, and they still are.

Under the Garda Síochána Act 2005, it became a criminal offence for Garda members to disclose information. It meant the provisions of the 1993 Act – to intercept communications when investigating crimes – could be used when investigating Garda members accused of disclosing information to journalists.

The 2005 Act also established GSOC, to investigate all forms of complaints against gardaí. It also conferred on GSOC many of the same powers as the Garda.

Major move forward

The 2011 Act gave powerful rights to a range of public authorities to access certain personal data of individuals without their consent and without the need for prior judicial authorisation.

With the Garda, an officer at the rank of chief superintendent or higher can grant permission to any other Garda member to seek retained telephone or other electronic data from a service provider.

In some cases, the data has been accessed by Garda members, and sanction from the senior officer sought and obtained after the event.

Disclosure from telecommunications service providers may be sought for the purposes of preventing, detecting, investigating and prosecuting serious offences, safeguarding the security of the State or saving of human life.

And last year, when the Government amended the 2011 Act, it extended to them the powers to plant listening devices and use as evidence any material of interest the devices yielded.

These powers had been extended to the Garda in a range of anti-gangland measures introduced in 2009.

The advocacy group Digital Rights Ireland has said that of all the surveillance and data accessing powers granted to bodies such as the Garda and GSOC, judicial approval is only needed when devices are being secretly put in place.

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