Tuesday 21 May 2019

TJ McIntyre: Circling of the wagons proves how secretive surveillance system is lacking real oversight

'It is clear that both the Irish law on phone tapping and the way it is implemented fail to meet
fundamental international standards.' Stock photo: PA
'It is clear that both the Irish law on phone tapping and the way it is implemented fail to meet fundamental international standards.' Stock photo: PA

TJ McIntyre

The reaction of the Department of Justice and An Garda Síochána to the latest phone-tapping scandal has been a predictable circling of the wagons. As usual, those bodies have refused to address the details of the allegations. We have seen generic statements, asserting that there is a legal basis for phone tapping and that it is subject to judicial oversight.

The problem with that response is simple: it is clear that both the Irish law on phone tapping and the way it is implemented fail to meet fundamental international standards.

Take the most basic starting point: who decides whether a phone tap should take place? International human rights law requires that interception of communications be authorised by a judge or an equivalent independent body. In Ireland, however, this power is given to the Justice Minister - leaving it open to allegations of political motivation.

Irish law also falls down on the question of who can have their phones tapped. Contrary to international standards, there are no safeguards on phone tapping targeting lawyers, journalists or parliamentarians.

Unusually for a Western democracy, Ireland does not have separate security and police agencies. Instead, both roles are combined in An Garda Síochána. The result is a blurring of the boundaries between the two functions which means that all surveillance ends up being concealed in unnecessary secrecy.

The Irish oversight system is out of line with international practice. In almost all EU member states, there are parliamentary committees which can oversee surveillance by security agencies. Ireland is one of only four EU states which does not make its security agency accountable to parliament. Instead, in security matters the Garda Commissioner answers only to the Justice Minister - the same person who is responsible for decisions to tap phones in the first place.

This may change to some extent in future: the new Policing Authority has the power to oversee An Garda Síochána and, in principle, might examine how phone tapping takes place in ordinary criminal cases.

What about other forms of oversight? The Department of Justice has made much of the requirement in Irish law for a "designated judge", a High Court judge who reviews the operation of the phone-tapping legislation each year. In practice, though, this appears to be of little value. The position is a part-time role of a busy High Court judge who is not required to have any particular knowledge of surveillance. The designated judge acts alone, without the benefit of any technical expert or other support, and is dependent for specialist advice on the agencies he or she is overseeing.

Every year, the designated judge issues an essentially identical one- or two-page report - a few paragraphs which recite that on a particular day certain (unspecified) documents were inspected, certain (unspecified) queries answered and as a result the judge is satisfied that the relevant authorities are in compliance with the law. The reports provide no detail of any sort, no statistics on the extent of tapping, no details of safeguards to prevent abuse or remedy errors.

Should we be reassured by these bland annual reports?

It is hard to assess such a secretive system, but even before the current scandal the failings of this oversight were exposed as abuses emerged which were not identified by the designated judge. For example, in 2014 an audit by the Data Protection Commissioner identified a systematic and illegal practice of retrospectively rubber-stamping requests for telecoms data. This took place during periods which the designated judge had given a clean bill of health.

Compare the UK, where oversight of phone tapping is carried out on a full-time basis by an Interception of Communications Commissioner with 13 support staff. The UK commissioner publishes detailed twice-yearly reports, statistics on the number of interception warrants issued, errors made, and the safeguards in place.

The other safeguard in Irish law is the Complaints Referee; individuals can complain to a Circuit Court judge if they believe they have had their phones wrongfully tapped. However, there has never been a successful complaint to the Complaints Referee - unsurprisingly, given that phone tapping takes place in secret and individuals are not notified, even if they are entirely innocent. We should not treat the lack of successful complaints as evidence the system is functioning well.

Dr TJ McIntyre is a consultant with FP Logue solicitors, lecturer in the UCD Sutherland School of Law, and chair of Digital Rights Ireland

Irish Independent

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