The Irish Times view on retaining mobile phone data: proper legislation is needed

On Monday, Minister for Justice Helen McEntee obtained a High Court order that required the State’s mobile phone operators to retain customer usage data for 12 months. The sort of information that will be retained about you includes who you are calling and when. It will also include your location at the time of the call.

This type of blanket retention of mobile phone data has been legally problematic since 2014 when the Court of Justice of the European Union (ECJ) struck down the Communications (Retention of Data) Act 2011 on privacy grounds.

The Government has promised since 2017 to bring in new legislation to address the problem. Officials were only galvanised into in action when the ECJ made it clear last year that cases brought on data collected under the 2011 Act could be challenged on the basis the data was obtained illegally. Convicted murderer Graham Dwyer successfully challenged the State’s right to retain data under the 2011 legislation.

The result was the Communications Retention of Data (Amendment) Act 2022 which was rushed through the Oireachtas last summer. It came into operation this week and was the basis of McEntee’s application.

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The act allows the Minster to seek an order in private and the test for getting an order is that there exists a serious and genuine, present or foreseeable threat to the security of the State and that such threat is likely to continue for at least the next 12 months.

The details of the threat to the State in this instance are unknown. So is the evidence on which the Minister relied. Accepting such rulings requires a great deal of faith in the State and its institutions on the part of the public.

Such faith is tested by a fundamental question: why, almost 10 years since the problems with its data retention policies emerged, has the State failed to address the issue?

At the heart of the problem is an unwillingness by the State to give up a very powerful policing tool, even though it is very aware that this power is at odds with the fundamental values to which the State subscribes.

This reluctance is understandable up to a point. Governments have a duty to keep their citizens safe and Ireland has a significant problem with organised crime and a legacy of paramilitary violence.

But these problems are not unique to Ireland. Other EU states share them and seem to be able to function without the sort of unfettered access to mobile phone data sought by the Minister.

The other thing Ireland shares with its European peers is a commitment to the rule of law as a pillar of democracy. Blanket retention of mobile data must stop and the promised comprehensive legislation to deal with this needs to be delivered.