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Ireland - Court threat for state over privacy

28 March 2012

from Karlin Lillington, written for Irish Times

Data Protection Commissioner Mr Joe Meade has twice threatened to begin High Court proceedings against the government for using an "invalid" Ministerial Direction to unconstitutionally store citizens' phone, fax and mobile phone data, it has emerged.

The Direction, issued secretly under Cabinet instruction in April 2002, requires the major telecommunications operators to retain information about all calls for three years.

According to correspondence obtained under the Freedom of Information Act, Mr Meade obtained legal advice which said the Direction was "in breach of Article 15.2.1. of the Constitution", lacked "the character of law" and was "in breach of the principles of Community law".

He also threatened proceedings because he believed the government had failed to act with the haste it initially promised, to replace the secret Direction with primary legislation.

The Direction, approved by Cabinet and issued by former Minister of Enterprise Ms Mary O'Rourke on 25 April last year, was designed as a stopgap measure to retain data for criminal investigations until the primary legislation to mandate retention could be brought in.

The issue arose after Mr Meade challenged the operators on their practice of retaining traffic data for up to six years. Under current data protection legislation, information about who made and received calls, when, where and for how long, may only be retained by operators for six months for billing purposes and then must be destroyed. Mr Meade's office made repeated strong objections to the Direction and criticised three years of retention as "excessive" in letter to the Secretaries General of the Departments of Justice and Communications.

In a terse letter to the Department of Justice Secretary General Mr Tim Dalton on December 19th last, he said:

"Unless I receive a satisfactory response by January 13th 2003, it is my intention to instruct solicitors to commence proceedings in the High Court seeking judicial review of the Directions issued to the telecommunications companies by the Minister for Public Enterprise"

It is extremely unusual for High Court proceedings to be issued against the government by a State body.

The note also reveals that a timetable for proceeding with legislation still had not been drawn up in early January although the Department of Justice told Mr Meade in a letter dated lst July that legislation would be brought in by autumn 2002.

Mr Meade first threatened High Court action when the autumn deadline passed, but agreed to hold off on the promise that legislation would be quickly introduced.

The Department of Justice is now expected to publish a Bill this term to make the April Decision the basis of mandatory three-year retention law. The legislation is expected to include call data as well as traffic information on all e-mails people send and receive and all Web pages they visit.

The proposal is strongly opposed by Irish business lobby groups such as technology industry organisation ICT Ireland, and the Irish Council for Civil Liberties.

It is understood that other Departments, including the Department of Communications and the Department of Enterprise, Trade and Employment, are worried about the potential negative effects of the proposal on Irish businesses and foreign investment.

The Minister for Justice, Mr McDowell, denied reports last November that his Department had failed to consult with any group other than the Garda on the proposed legislation. But a five-page letter from Mr Dalton to Mr Meade last March indicates this was indeed the case.

The secret Direction has made the Republic the only Western democracy with a mandatory data retention regime. In the US, Congress has repeatedly scuppered legislation proposing mandatory data retention, while legislation proposing one year of retention in Britain remains a subject of bitter debate.

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