Challenge planned to phone snooping law
Published 15/01/2016 | 02:30
Laws allowing the garda watchdog and gardaí to access the phone and computer records of journalists and members of the public will be subject to a High Court challenge.
Digital Rights Ireland, a campaign group opposed to the retention of phone and email data, is bringing the case follow- ing a successful challenge to an EU directive on the issue two years ago.
The case comes amid criticism of the Garda Síochána Ombudsman Commission (GSOC) for accessing the phone records of at least two journalists while investigating allegations of leaks by gardaí.
GSOC scrutinised the phone records of two journalists follow- ing a complaint by a friend of the late model Katy French, who died of a drug overdose in December 2007. However, the exact nature of the complaint is unclear and the journalists involved were not informed their records were being accessed.
The Digital Rights Ireland case seeks to strike down Irish data retention laws and the laws allowing gardai and GSOC access to phone and email records.
At the very minimum, the group is seeking to have the law changed so that the approval of a judge would be needed.
Transparency International also called for judicial oversight and the right for journalists to appeal against applications to access their phone or email records.
Under existing laws, such records can be accessed on the approval of a chief superintendent in the case of gardaí, while in the case of GSOC the permission of a commissioner is required.
GSOC would not clarify whether this power could be devolved downwards to a lower level investigator.
A GSOC spokeswoman said she was not authorised to comment on the issue.
The complaints body was at the centre of a major political controversy two years ago when it claimed gardaí were bugging its offices.
A report by retired High Court judge John Cooke found no evidence of any surveillance taking place, and "much less" that gardaí were responsible.
GSOC was also involved in controversy last year when a garda sergeant took his own life not knowing he had been cleared by a Garda Ombudsman investigation.
GSOC's trawl of the journalists' phone records is thought to be the first time ombudsman's investigators have used powers given to them last year in the Garda Síochána (Amendment) Act 2015.
One of the reporters involved, Conor Feehan, works for Independent News and Media, the publishers of the Irish Independent.
The National Union of Journalists (NUJ) said it was "worrying" that there was "no oversight" of the process. It is seeking an urgent meeting with GSOC following the revelations.
"Citizens have the right to make complaints to GSOC and we absolutely recognise that," said NUJ secretary Seamus Dooley, "but the investigation of phone records and data is only something that should be done in extreme cases and should be done by application to a court."
Mr Dooley said investigations by GSOC could jeopardise the ability of journalists to do their job and protect whistle-blowers who act in the public interest.
Digital Rights Ireland chairman and UCD law lecturer TJ McIntyre said: "We are challenging primarily the obligation to retain this information on the entire population.
"As part of that challenge we are saying the mechanisms governing access to information are also inadequate."
Transparency International Ireland chief executive John Devitt said GSOC had the right to investigate alleged leaks by gardaí if the leak was not in the public interest.
However, he said a balance needed to be struck and a journalist's sources needed to be protected.
"We would suggest that the current legislation ought to be reviewed so that gardaí or GSOC have to convince a judge on why accessing the data is in the public interest and allow a journalist or a publisher a right to appeal a decision," he said.
"That can be done in a way that doesn't compromise or prejudice an investigation."
Social Democrats TD Catherine Murphy said the revelation that journalists' phones were being monitored by GSOC could have a "chilling effect" on whistle-blowers coming forward with issues of public concern.
"It's very important that avenue is available," she said. "This goes much wider than two individual journalists. I've got to say the media - even though I'd be very critical of elements of it - have to be that fourth estate, have to be part of the accountability.
"I share the concerns that have been expressed by the National Union of Journalists. I think it can have a chilling effect in terms of people being very hesitant about coming forward."
Last night, Fianna Fáil Justice spokesperson Niall Collins also called for a review of legislation surrounding GSOC so that journalists could protect sources.