Data Retention Consulation Space

Victor

Well how about this.

Victor

WELCOME

to our online consultation on data retention

Michael McDowell, T.D.

Minister for Justice, Equality and Law Reform

My Department is working on new legislation so that telephone data will continue to be retained by the industry and accessed in the necessary fight against crime. The Telecommunications (Retention of Traffic Data) Bill, as well as providing for retention of the data, will strengthen the safeguards already in place.

At the recent information forum on data retention I set out my own thinking at this early stage in the public debate on the issue and stressed that I have an open mind on how the balance should be struck between the human right of privacy and the protection of our other human rights from cyber-terrorism and cyber-crime.

The legislation does not mean that the content of people's calls are going to be stored on some database, or that the content of e-mails will be read by diligent Gardaí or civil servants in some surreal re-make of George Orwell's 1984. Law abiding citizens at present have nothing to fear from the retention of certain information related to landline telephones, mobile phones and Internet traffic, when it is being retained solely for the purposes of detecting or preventing criminal acts, such as the awful atrocity of Omagh.

Before the new legislation is ready for consideration by the Government my Department is consulting widely on its content. And far from being a secret Bill the Government Legislation Programme for the Autumn Session 2002 publicly signalled my intention to bring such a Bill to the publication stage during 2003. An important first step in that consultation process was the Information Forum on Data Retention held on 24 February, 2003 and which brought together some of the key interested parties. You can access the proceedings of the Forum by clicking on the link opposite.

It would be misleading for me not to acknowledge that I see benefits to the retention of data in the fight against crime. Criminals and terrorists, as we are well aware, respect no boundaries, whether terrestrial or in cyberspace; they have no scruples in using the methods of modern technology to plan and execute despicable acts. Are we to allow these people uninvestigable access to modern technologies - such as newer generation mobile phones and the Internet - in pursuance of their aims and objectives? And are we to place insuperable obstacles in the way of the Garda Síochána, whom we expect to protect us from the criminal and safeguard our hard-won freedoms and liberties?

We welcome your contribution to the consultation on data retention. You can post your comments by email to dataretention@justqp.justice.ie. Suggestions on the shape of the site are also welcome. The site will be moderated. However, all comment received, once it is phrased in non-offensive language, will be posted. Thank you for taking the time to visit and I look forward to your contributions.

Victor

Mr. Michael McDowell, T.D., Minister for Justice, Equality and Law Reform.

I consider that for informed debate to occur it is necessary to explain what exactly the proposed legislation is designed to do and to try to crystallise some of the issues which arise. As I have said in the Welcome page I see benefits to the retention of data in the fight against crime.

The proposed legislation is not about setting up some sort of massive database logging every citizen's communications nor is it about Big Brother listening in on your telephone calls or looking over your shoulder at your e-mails. The proposed legislation will not lead to automated surveillance of telecommunications. These are important points of clarification. When we talk of data retention in this context we are not talking about the content of any communications. We are talking about data such as numbers called, time and duration of calls and location of the communications device at a particular time.

I am of the view that law abiding citizens have nothing to fear from the retention of certain information related to land-line telephones, mobile phones and internet traffic, when it is being retained solely for the purposes of detecting or preventing criminal acts, such as the awful atrocity of Omagh.

If we are to be truthful about data retention we will acknowledge that where the citizen has a difficulty it is where companies retain billing data for their own commercial purposes, such as direct marketing. It is in response to such concerns that telecoms operators, in accordance with Data Protection regulations, are now retaining billing information for shorter periods. That is wholly understandable. However, no reasonable person is going to object, I firmly believe, with the principle of retaining information which, as we will see, can be vital in bringing perpetrators of serious crime to justice.

Fundamentally, all that is proposed is to set a time limit on the period for which certain data on telecommunications usage must be retained for possible access, under judicially-controlled circumstances, by the Garda Síochána for the investigation of serious crime and by the Garda Síochána and the Defence Forces for the protection of national security. A number of licensed telecoms operators have historically retained data voluntarily for up to six years or more. The proposal is to bring this down to three years. The 2002 EU Directive concerning the processing of personal data and the protection of privacy in the electronic communications sector allows Member States to legislate to retain such data for a limited period of time. As is stated in a preamble to the Directive, "it does not alter the existing balance between the individual's right to privacy and the possibility for Member States to take the measures referred to in Article 15(1) of this Directive, necessary for the protection of public security, defence, State security (...) and the enforcement of criminal law. Consequently, this Directive does not affect the ability of Member States to carry out lawful interceptions of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the rulings of the European Court of Human Rights." The preamble goes on to say that "Such measures must be appropriate, strictly proportionate to the intended purpose and necessary within a democratic society and should be subject to adequate safeguards in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms."

Access to retained data for the purpose of the investigation of serious crime and protection of national security is already allowed in law. Section 98 of the Postal and Telecommunications Services Act, 1983 as amended by the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 allows for the disclosure of information concerning the use made of telecommunications services in a number of circumstances on a request from a member of the Garda Síochána not below the rank of Chief Superintendent and a member of the Defence Forces not below the rank of Colonel.

Access to data, however, should not be gratuitous or allowed as some sort of speculative 'fishing' exercise. Bearing in mind one of the preambles to the Directive quoted above, I am of the mind that the proposed legislation should, for the first time, provide for some judicial overview of the system of access to retained data - judicial overview already exists in the case of call interceptions. This is, I feel, a very important development. While I do not mean this to be any criticism of how the Gardaí or Defence Forces have used these powers to date, this provision for judicial overview could help ensure that any system of access to such information is used only where absolutely necessary and in a proportionate fashion.

So - what are the issues that arise from the proposed legislation? Clearly, the provision in law of access to retained data has implications for the protection of privacy of individuals. Without legislation to set the parameters in which the privacy of individuals can be overridden we would risk a situation where there is a free for all in relation to the use of such information. Irish constitutional law strongly supports a right to privacy and any legislation must take account of that. I would characterise the proposed legislation as seeking to protect the privacy of individuals' communications data subject to limited exceptions which provide for access in clearly defined circumstances. In framing the proposed legislation I will be guided not only by the EU Directives, constitutional law and the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the rulings of the European Court of Human Rights but also be the work of the Law Reform Commission as represented by its 1996 consultation paper on "Privacy: Surveillance and the Interception of Communications" and its subsequent 1998 report on the same topic.

In an area of technology which is constantly and quickly evolving we must also look at how innovations both provide opportunities for and present threats to the enhancement of the safety and security of our citizens and, indeed, how individuals' privacy can be affected for good and bad by emerging technologies. If we are to accept that the forces who are charged with preventing and combating crime and protecting the security of the State and its citizens should be as well equipped as those who would seek to commit crime and threaten that security, then we must also look to the future and not allow technology to outpace the capacity of the law to cope.

In framing our proposals we must ensure that data which is the result of hacking or is otherwise corrupted is not misinterpreted and we must examine procedures for the destruction or anonymising of data which is either no longer required or is proven not to be useful.

In conclusion, I think that we need to put these proposals in some sort of perspective. What could be classed as personal information has been used for decades for commercial, political and other purposes. Anyone who has received junk mail or election leaflets through their front door will know this. We now receive spams on our home PCs and mobile phones. Telecoms Operators have already developed revenue models that exploit location data on mobile phones for commercial purposes. To protect us in this environment we have, quite rightly, robust data protection legislation. What we need to develop is an approach which allows us to reap the benefits that new technology provides without suffering the effects of the misuse of that technology. In short, we must seek the fairest balance between the general good of society and the interests and rights of the individual.

Victor

The following links may be useful.

POSTAL AND TELECOMMUNICATIONS SERVICES ACT, 1983 [click here]

DATA PROTECTION ACT, 1988 [click here]

INTERCEPTION OF POSTAL PACKETS AND TELECOMMUNICATIONS MESSAGES (REGULATION) ACT, 1993[click here]

European Communities Telecoms Data Protection Regulations 2002 (S.I. No. 192 of 2002) [click here]

Victor

This page contains links to the important EU instruments covering Data Retention. They can be accessed by clicking on the links below. (To read documents in pdf format,you will need Adobe Acrobat . You can download [here] )


1. DIRECTIVE 2002/58/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector:
[click here]

2.DIRECTIVE 97/66/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector: [click here]

Victor

You can access related websites from here. To read documents in pdf format you will need Adobe Acrobat . You can download [here]

Office of the Data Protection Commissioner

An Garda Síochána

Department of Communications, Marine and Natural Resources

The Home Office The Government Department responsible for internal affairs in England and Wales.

"Access to communications data - respecting privacy and protecting the public" a Home Office consultation paper about how communications data is used by a range of public authorities to protect the public from crime, March 2003 [click here]

Home Office Consultation Paper on a code of practice for voluntary retention of communications data, March 2003 [click here]

All Party Parliamentary Internet Group on Communications Data This group exists to provide a discussion forum between new media industries and UK Parliamentarians for the mutual benefit of both groups.

System Administrators Guild This is the web site of the System Administrators' Guild of Ireland. System Administrators are technical professionals responsible for the support, maintenance and development of computer systems.
You can access the slide show on the Guild's recent seminar on data retention [here]

Please notify us of any websites you might consider relevant.

Victor

Disclaimer: The contents of these pages are intended to enhance public access to information about proposals for legislation in the area of data retention. While every effort is made in preparing material for publication no responsibility is accepted by or on behalf of the State for any errors, omissions or misleading statements on these pages or any site to which these pages connect.

Although every effort is made to ensure the reliability of listed sites this cannot be taken as an endorsement of these sites.

dmeehan

what has this got to do with Commuting/Transport?

Victor

Originally posted by dmeehan
what has this got to do with Commuting/Transport?

Ooops forgot to move it.