Digital Rights Ireland Challenge to Data Retention

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The Irish Government filed a challenge to the data retention directive on
6 July 2006. The challenge had been announced some time before by the
Minister for Justice but was filed just before the time limit for the action
had expired.

The case challenges the legal basis for the directive, alleging that this
was a matter relating to criminal justice and as such the appropriate
measure would have been a framework decision under the third pillar.
The challenge is purely procedural in nature, however, and does not
address privacy concerns about the directive. It appears that Slovakia,
which shared Ireland’s concerns about the legal basis and also voted against
the directive, has decided not to bring a challenge of its own but will
support the Irish case.

Digital Rights Ireland (DRI) has written to the Irish Minister for Justice
and Law Reform, the Minister for Communications, Marine and Natural
Resources and to the Garda (Police) Commissioner. They have looked for
undertakings from them to cease breaching the Constitutional, statutory and
European rights of the citizens of Ireland by discontinuing data retention.
Failing a positive response, they have instructed their solicitors, McGarr
Solicitors, to prepare legal action.

The DRI challenge relates to both domestic data retention schemes (in place
since 2002) and the data retention directive. The challenge will seek to
have the domestic laws struck down as illegal, unconstitutional, and in
breach of the European Convention on Human Rights. The challenge will also
seek an injunction restraining implementation of the directive and a
referral to the European Court of Justice to test the legality of the
directive.

T.J. McIntyre, University College Dublin law lecturer and chairman of DRI
said: “This is a complete reversal of the assumption that people are
innocent until proven guilty. This legislation is the first time we have
seen any state impose mass surveillance on its population on the basis that
at some point in the future someone might commit a crime.

This mass surveillance by the state is a breach of our right to privacy, as
set out in our constitution and in the European Convention on Human Rights.

At the moment, the movements and telephone calls of every citizen are being
monitored. If we allow the EU directive to be implemented, this surveillance
will extend to the emails and web browsing of every citizen.

The undertakings we have sought from the Ministers for Justice and
Communications and the Garda Commissioner are urgently required if the
ongoing breach of citizens’ rights is to stop. If they are not forthcoming
we have informed all the parties that our legal team have instructions to
commence legal proceedings.”

Ireland in court challenge to terror directive (20.5.2006)
http://home.eircom.net/content/irelandcom/topstories/8095654?view=Eircomnet

Irish Government challenges Data Retention Directive – but ignores privacy
rights (7.07.2006)
http://www.digitalrights.ie/2006/07/07/irish-government-challenges-data-retention-directive-but-ignores-privacy-rights/

DRI challenge to Data Retention (29.07.2006)
http://www.digitalrights.ie/2006/07/29/dri-challenge-to-data-retention/

State may face legal challenge over its access to phone data (29.07.2006)
http://www.ireland.com/newspaper/front/2006/0729/1154075749923.html

EDRI-gram : European parliament adopts data retention directive (18.01.2006)
http://www.edri.org/edrigram/number4.1/dataretention

(Contribution by TJ McIntyre, Digital Rights Ireland)