Irish surveillance legislation: secret interpretations of secret laws

A few weeks after introducing lawless internet blocking in Ireland, Minister for Justice Frances Fitzgerald took her assault on the rule of law to another level. On 26 November 2014, she introduced into national law – by means of a “Statutory Instrument” (SI, an executive power that does not require any parliamentary discussion) – new powers that allows foreign law enforcement authorities to intercept Irish e-mails and phone calls. It also allows the Irish authorities to request tapping in foreign jurisdictions. The power to adopt the SI derives from legislation on mutual assistance adopted in 2008.

The measures, having remained dormant for six years, were signed into law by Minister Fitzgerald. They came into force the day after documents were published in Der Spiegel, indicating that the British intelligence agency had been tapping undersea communications for many years. Despite these revelations, and the wider damage to citizens’ rights and freedoms caused by the practices uncovered by the Snowden revelations, Minister Fitzgerald did not feel that it was necessary to consult Parliament again. Indeed, she did not even consider it necessary to make a public statement on the SI, choosing instead to quietly sign it into law.

By doing so, there has been no parliamentary debate, there has been no public debate. If the measure was necessary and proportionate, when it was adopted in 2008, why was it somehow not necessary to actually pass it into law until 2014? What was the advantage of avoiding a public debate? The Minister’s explanation that the measure was needed in order to comply with European obligations implies that she does not believe that such far-reaching powers are actually necessary – and therefore that Ireland is being forced into a breach of international law by its European obligations. It is worrying that this happened just six months after the European Court ruled that the EU’s Data Retention Directive was illegal under EU law. The ruling means that EU Member States had been coerced by the European Commission into breaking the law, in the name of law enforcement.

EDRi member Digital Rights Ireland (DRI) has been highly critical of the measures, particularly with regard to the use of secret courts, which are a novel measure from an Irish legal perspective and raise significant concerns for predictability. According to DRI Chairman TJ McIntyre, a minister should not be in a position where he or she can order compliance with secret orders, and where the companies subject to orders are not able to publicly state their objections, or even that they are the subject of an order. “It’s worrying because it means telecommunications companies might be pressured into doing things that aren’t entirely legal,” he is quoted as saying.

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Irish Times “State sanctions phone and email tapping” http://www.irishtimes.com/business/technology/state-sanctions-phone-and-email-tapping-1.2027844

Irish times “Surveillance by a Government-sponsored secret system” http://www.irishtimes.com/business/technology/surveillance-by-a-government-sponsored-secret-system-1.2033443