Wednesday 28 September 2016

State's powers to snoop on people an affront to basic individual freedom

Published 21/01/2016 | 02:30

Under fire: Garda Commissioner Noirin O’Sullivan and Justice Minister Frances Fitzgerald. Photo: Frank McGrath
Under fire: Garda Commissioner Noirin O’Sullivan and Justice Minister Frances Fitzgerald. Photo: Frank McGrath

If agents of the State had the power to pick the lock of your home, enter it while you were out, search it, leave, and never inform you of what they had done, would you feel comfortable?

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If they had those powers and could exercise them without having to set out their reasons for the invasion of your privacy to an unrelated overseeing entity, such as a judge, and seek that entity's permission, you would be forgiven for thinking that you were living in an authoritarian-minded state.

But exactly those unsupervised powers are wielded by agents of this State. And the revelations of recent days show that they are being exercised on a large scale. This is extremely serious.

For the State and its agents to have unfettered access to trawl through citizens' phone and electronic communications records in an age when so much of our lives is conducted from our telephone handsets is barely less serious than an unfettered right to enter citizens' homes and search them without a pre-authorised warrant.

The issue of the Garda ombudsman, GSOC, accessing journalists' phone records - and possibly compromising their sources - is a very serious matter, but it is dwarfed in scale by the wider revelations of just how many warrantless trawls have been conducted by other State entities.

It could be said that this would be less of a concern if good checks and balances on the way the State exercises these powers were in place and properly enforced. But that is very far from being the case.

The design of oversight mechanisms is very poor. Enforcement is effectively non-existent.

The existing oversight mechanism allows for a single "designated judge", who works full-time on normal court business, to assess the thousands of cases of electronic snooping that take place each year.

He does so after the fact, not before the snooping takes place. He assesses the thousands of cases together in the space of a few days towards the end of each year.

The current designated judge is Justice Paul McDermott. Last November, he sent his annual report to the Taoiseach. His preparation involved one visit each to four State entities wielding surveillance powers and one visit to the Department of Justice. The visits took place over three days.

The very limited time and resources that went into examining the thousands of cases annually is reflected in the Justice's output.

His final report in 2015 was five paragraphs in length. Its perfunctory nature is to be seen when his effort from 2014 is read side by side. They are almost identical, with the biggest difference each year being the changed dates of the visits to the organisations that were subject to the judge's scrutiny.

The near-identical nature of the (extremely brief) report in 2013 by then designated judge, Justice Iarfhlaith O'Neill, and Justice McDermott's subsequent reports tell their own tale.

None of this is to make some woolly liberal case against appropriate and proportionate powers for the forces of the State. All well-functioning societies grant to the State a monopoly on the use of force and other coercive powers so that security and order can be maintained in the interests of everyone, and most particularly the weak who are usually the most vulnerable when law enforcement becomes ineffective.

But monopolists of all varieties need very tight regulation and oversight.

Those who wield the powers that are exercised by the State need a great deal of regulation and oversight because, as sure as night follows day, misuse and abuse of power happens by at least some of those who exercise it when checks and balances are not in place.

Given that the vast majority (94pc) of the almost 6,000 trawls of citizens' private telephone records which took place in 2014 were carried out by An Garda Síochána, as revealed in this newspaper yesterday, that organisation logically requires most attention in this matter.

Another reason for disquiet is the too numerous scandals involving the Garda Síochána in recent years which suggest that despite the enormously valuable work the force and its members do to protect law-abiding citizens, its governance and aspects of its organisational culture have some way to go before reaching standards of international best practice.

More specific concerns arise from the 2014 audit of the force's practices by the Data Protection Commissioner.

While there were plenty of positive findings in the reports, it also found "disturbing instances of improper access" to the PULSE computer system by individual members of the force.

If the matters raised in recent days are very serious, has the Government's response been proportionate?

The answer in short is no.

The Minister for Justice, Frances Fitzgerald, has tasked a retired judge to look into whether any of the entities which wield surveillance powers used them to access journalists' data. That is to be welcomed, but it does not go far enough. All citizens deserve the same reassurance about what has happened.

Despite the seriousness and the scale of the effectively unsupervised snooping, Minister Fitzgerald said that it was not possible to do anything to stop it now.

She cited "complex" issues. That is an utterly inadequate explanation and a demonstration of impotence.

The surveillance set-up as it currently exists is an affront to liberty and basic individual freedoms.

It needs to be thoroughly reformed as a matter of urgency.

Irish Independent

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