Key privacy concerns in Ireland 2007

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a. Data Retention Litigation

The Digital Rights Ireland litigation against data retention, which was
started in September 2006, continues before the High Court. This action
challenges both the Directive and also Ireland’s domestic data retention
laws. It alleges that those laws are procedurally flawed and are also in
breach of the right to privacy guaranteed under the Irish Constitution and
Article 8 of the European Convention on Human Rights. It also argues that
data retention will have a chilling effect on the Constitutional and ECHR
rights to freedom of expression and association. In addition, the action
argues that the tracking of the movements of any person carrying a mobile
telephone interferes with the right to travel under the Constitution. The
action alleges that these infringements of personal rights are neither
proportionate nor necessary in a democratic society.

At the time of writing the action is at the interlocutory stages and awaits
a full hearing. Two preliminary matters are currently before the court. The
Irish Human Rights Commission (a statutory body) has made an application for
permission to intervene in the case as an amicus curiae. The defendants have
also indicated their intention to challenge the locus standi of Digital
Rights Ireland to bring the case. Both applications have yet to be ruled on
by the court.

b. Implementation of the Data Retention Directive

The Irish Government has confirmed reports that it intends to implement the
Data Retention Directive by an order of a Minister rather than legislation
passed by Parliament. Ireland did not avail of the derogation under the
Directive to delay implementation in respect of internet traffic data.
Consequently Ireland is now late in implementation and has received a
warning letter from the Commission. The Government has decided to implement
the Directive notwithstanding its own challenge to the legal basis of the
Directive, which is before the European Court of Justice and awaits a
hearing.

The decision to implement the Directive by Ministerial order has been
criticised for excluding democratic oversight by legislators and as being
taken without proper consultation. Paul Durrant, director of the Internet
Service Providers Association of Ireland (ISPAI) has said that:
“The ISPAI is disappointed that such an all pervasive measure . . . should
be enacted without being subjected to the full rigours of (parliamentary)
debate and the public exposure that brings.”

Digital Rights Ireland said that:
“It is incredible that the Government proposes to introduce a law which
would require every Internet user to be monitored without any warrant or
prior judicial approval, without any public consultation and without any
debate or vote in Parliament. A law of this gravity should not be made by
stealth.
The Department of Justice appears to be relying on the “urgency” of the
matter to justify bypassing Parliament. But the European law being
implemented was passed in February 2006. The Department has had two years to
introduce a law and it cannot rely on its own delay to justify sidelining
democratic scrutiny.
In any case, it is inappropriate to implement this law whilst it is under
court challenge. The Irish government itself has challenged the validity of
the law before the European Court of Justice. Digital Rights Ireland has
also brought a High Court action challenging the European law. These
proposals will effectively pre-empt the judgment of the courts.”

Alarm bells ring over data retention(7.12.2007)
http://www.techno-culture.com/?p=131

E-Mail and chat data to be stored ‘within a month’ (19.01.2008)
http://www.ireland.com/newspaper/frontpage/2008/0119/1200605160420.html

DRI condemns backdoor implementation of surveillance laws (19.01.2008)
http://www.digitalrights.ie/2008/01/19/dri-condemns-backdoor-implementation-of-surveillance-laws/

(contribution by TJ McIntyre – EDRi-member Digital Rights Ireland)