Blog Post

The identity of every person you phone, text, and/or email, the date and time of when you do so, and the location of where you are when you do so, is now being retained by mobile phone companies for Garda access.

It follows the Department of Justice obtaining a High Court order requiring the companies to do so during a secret court hearing on Monday, June 26, 2023.

This collection and retention of data is a form of mass surveillance which allows for the mapping of the private activities of virtually every person in Ireland. Both the High Court order and the lack of transparency surrounding it are gravely concerning. The order is also likely to be contrary to CJEU case law and, therefore, illegal. This risks evidence in future criminal trials either being challenged and/or such trials collapsing.

Before seeking the order on Monday, the Minister would have had to have carried out an assessment of threats to the security of the state, and be satisfied that a serious and genuine, present or foreseeable threat to the security of the State exists. She would also have had to have asked the President of the High Court to designate a judge, or judges, of the High Court to be a ‘relevant judge’ under the Communications (Retention of Data) (Amendment) Act 2022.

Given the secrecy of this move, in the interests of transparency and democracy, the Minister for Justice must answer the following questions:

1. How is this application and order in accordance with CJEU case law?
2. On what date did the Minister ask the President of the High Court to designate a judge or judges of the High Court to be a ‘relevant judge’ under the Communications (Retention of Data) (Amendment) Act 2022?
3. On what date was that judge nominated?
4. Who was the judge nominated?
5. Is the alleged threat present or foreseeable to the security of the State?
6. What assessments were conducted in respect of the alleged threat?
7. What evidence was proffered in relation to the alleged threat?
8. How is the retention of this data necessary and proportionate to the purposes for which the application was made?
9. Did the Minister carry out a Data Protection Impact Assessment?
10. Did the Minister consult with other bodies, including but not limited to, the Data Protection Commission and the Irish Human Rights and Equality Commission before making this application?
11. What conditions and directions did the relevant judge specify in the order?
12. Why did the Department of Justice not respond to questions from the press about this application on Friday, June 23?
13. How long was the court hearing on Monday, June 26?
14. What records of this court hearing exist?
15. What judge oversaw the hearing and granted the application?
16. What is their expertise in respect of surveillance and data protection?
17. Was the judge a ‘designated judge’ under a previous data retention regime in Ireland?
18. Did the Department of Justice consult with service providers before the High Court hearing?
19. Why was civil society not consulted about this application and hearing?
20. Why was the application made in secret?

The following questions also arise for the DPC:

1. When the Government hurriedly passed the Communications (Retention of Data) (Amendment) Bill 2022 in July 2022, DRI previously complained to the DPC about the fact the Government had not consulted with the DPC, as is legally required. What did the DPC do in respect of that breach?
2. Considering the CJEU case law concerns, what is the DPC currently doing?