Sunday 15 September 2019

Bid to curb Garda phone data access 'not good enough'

Justice Minister Charlie Flanagan Photo: Justin Farrelly
Justice Minister Charlie Flanagan Photo: Justin Farrelly
Cormac McQuinn

Cormac McQuinn

Proposed changes to the law on how gardaí and other State agencies can access an individual's phone data include no specific measures to protect journalists and their need to protect confidential sources.

For the first time permission from a judge will be required for various authorities to access certain phone records under the draft law announced by Justice Minister Charlie Flanagan.

But the National Union of Journalists (NUJ) last night expressed concern that it may not go far enough to protect journalists' interests.

The draft law contains conditions under which State agencies can access an individual's communications data held by mobile phone and internet companies.

The data includes details of who owns the phone, what numbers are called, and the location where it is used. It doesn't include the content of phone communications.

Supreme Court judge John Murray conducted a review of the existing 2011 Data Retention Act. He was brought in to carry out the study in 2016 after it emerged that the Garda Síochána Ombudsman Commission (GSOC) obtained the phone records of two journalists following a complaint from an associate of the late model Katy French.

The review, completed last April, was also published by the Department of Justice yesterday.

Mr Justice Murray recommended that the Government should consider a provision in any new law on data retention "expressly prohibiting" access to phone data for the purpose of identifying a journalist's source unless it is justified in the public interest.

Mr Flanagan last night acknowledged that journalists are in a "position of unique responsibility" in relation to their work and he believes they are "fully entitled to the protections as envisaged under the report".

But he said that there needs to be a balance between the safeguarding of citizens' and journalists' rights and the need to access phone data in "certain circumstances".

He said the draft legislation defines these circumstances as instances where a crime is being investigated or when national security is at stake.

Mr Flanagan said the existing law needs to be replaced due to recent European Court of Justice judgments and there are "certain difficulties" with the 2011 Act which will remain in force in the interim. But he said he doesn't accept the current Act is unconstitutional.

Mr Flanagan could not say how many journalists have had their phone data accessed under the 2011 Act.

He said he didn't have access to the numbers and that it's long been the practice of justice ministers that they don't reveal information on the number of interceptions for "sound and obvious reasons of security".

Mr Flanagan has referred both the draft legislation and the Murray Review to the Oireachtas Justice Committee for consideration.

Last night the Irish secretary of the NUJ Séamus Dooley welcomed the publication of the Murray review saying it was "long overdue".

In relation to the Government's draft law he said: "Our concern would be at first reading that it may not go far enough in protecting the specific interests of journalists.

"We would hope that will be explored at the Oireachtas Justice Committee and there may be the opportunity to add in greater safeguards.

"The protection of the public interest is directly linked to safeguarding the right of journalists to confidential sources of information."

Irish Independent

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