Blog Post

We have now started our legal action against the Government challenging Irish and European laws on data retention. Here’s the full press release.

DIGITAL RIGHTS IRELAND CHALLENGES MASS SURVEILLANCE LAWS

Irish civil rights group Digital Rights Ireland (DRI) has started a High Court action against the Irish Government challenging new European and Irish laws requiring mass surveillance. DRI Chairman TJ McIntyre said:

These laws require telephone companies and internet service providers to spy on all customers, logging their movements, their telephone calls, their emails, and their internet access, and to store that information for up to three years. This information can then be accessed without any court order or other adequate safeguard. We believe that this is a breach of fundamental rights. We have written to the Government raising our concerns but, as they have failed to take any action, we are now forced to start legal proceedings.

Accordingly, we have now launched a legal challenge to the Irish government’s power to pass these laws. We say that it is contrary to the Irish Constitution as well as Irish and European Data Protection laws.

We also challenge the claim that the European Commission and Parliament had the power to enact the Data Retention Directive. We say that this kind of mass surveillance is a breach of Human Rights, as recognised in the European Convention on Human Rights and the EU Charter on Fundamental Rights which all EU member states have endorsed.

If we are successful, the effect will be to undermine Data Retention laws in all EU states, not just Ireland, and to overturn the Data Retention Directive. A ruling from the European Court of Justice that Data Retention is contrary to Human Rights will be binding on all member states, their courts and the EU institutions.

Attack on Private Life

He continued:

These mass surveillance laws are a direct, deliberate attack on our right to have a private life, without undue interference by the government. That right is underpinned in the laws of European countries and is also explicitly stated in Article 8 of the European Convention on Human Rights. The Article specifies that public authorities may only interfere with this right in narrowly defined circumstances.

The information will be collected and stored on everyone, regardless of whether you are a criminal, a policeman, a journalist, a judge, or an ordinary citizen. Once collected, this information is wide open to misappropriation and misuse. No evidence has been produced to suggest that data retention laws will do anything to stop terrorism or organized crime.

We accept, of course, that law-enforcement agencies should have access to some call data. But access must be proportionate. In particular, there should be clear evidence of a need to move beyond the six months of storage which is already used for billing purposes. Neither the European Commission nor the European police forces have made any case as to why they might require years of data to be retained.

Data Retention, as legislated for in Ireland and mandated by the Data Retention Directive is unjustified mass surveillance. The government is deliberately recording information about innocent citizens without cause.

Legal background

The action challenges the law on data retention contained in the Irish Criminal Justice (Terrorist Offences) Act, 2005 and the European Data Retention Directive passed in 2006. The action has been commenced in the High Court by McGarr solicitors on behalf of DRI and names as defendants the Minister for Communications, Marine and Natural Resources, the Minister for Justice, Equality and Law Reform, the Garda Commissioner, Ireland and the Attorney General. DRI will ask the Irish courts to refer the Directive to the European Court of Justice for a decision on whether it is valid.

International Support

Digital Rights Ireland is the only group bringing a challenge to these laws, but it is supported by many international privacy and civil rights groups. Danny O’Brien of the Electronic Frontier Foundation said:

The EU Data Retention Directive is an excessive invasion of the privacy and security of all Europeans. Mandatory recording and retention of European citizens’ telephone calls by telephone companies and their online behaviour by Internet Service Providers creates a precedent for mass surveillance and is likely to chill freedom of expression on political and social issues that are at the very core of a well-functioning democracy. Digital Rights Ireland’s legal challenge to the directive will help protect not only the fundamental rights of citizens of Europe, but also those of other countries tempted along the same path.

Other organisations supporting the action include Privacy International, the European Foundation for a Free Information Infrastructure, the Czech civil rights group Iuridicum Remedium, Digital Rights (Denmark), the Belgian Liga voor de Mensenrechten (“League for Human Rights”), Electronic Frontier Finland, the UK Open Rights Group, the Italian group, ALCEI (“Electronic Frontiers Italy”), the French IRIS, the Internet Society – Bulgaria, German groups netzwerk Neue Medien (“network New Media”) and FITUG (Förderverein Informationstechnik und Gesellschaft e.V.), and the Austrian groups VIBE!AT (“Austrian Association for Internet Users”) and Quintessenz.

Click here to see how you can support the action also.