Communication interceptions laws to be updated
Legislation is being drafted that will update the Interception of Postal Packages and Telecommunications Act, 1993 to grant State agencies the power to intercept encrypted communications and catch up with technological advances in communications.
The news that such law changes, which An Garda Síochána have been pursuing for years, are forthcoming was revealed by the Irish Examiner in the aftermath of revelations that a spying operation undertaken by a joint French-Dutch police team had managed to break encrypted devices on the EncroChat network. The operation allowed the police team to monitor criminal communication in real time as they were sent via encrypted networks, a major step forward for policing in the digital age.
The unsuitability of Ireland’s laws to facilitate something similar has long been a source of complaint from An Garda Síochána and other security agencies within the State, with a 2019 judicial report from Justice Charles Meenan stating that communication monitoring laws in Ireland are “considerably out of date”. Meenan, whose brief includes the monitoring of the 1993 Act, also wrote that there are concerns that court rulings regarding the illegality of separate laws on accessing communications were having a “detrimental” effect on investigations.
The judge pointed to “technical developments” since the 1993 Act in his report to the then Taoiseach Leo Varadkar. The specific problems were not identified within the report, but security agencies have long been complaining that the 1993 Act is not flexible enough to allow for the interception of encrypted communications and social media messaging, innovations that came long after the Act’s enshrinement into law.
Meenan is the judge designated to check both the 1993 Act and Section 12 (1) (C) of the Communications (Retention of Data) 2011; the former allows for the interception of communications with authorisation from the Minister of Justice, while the 2011 Act allows agencies to seek traffic data (excluding message contents) from phone and online companies. Gardaí, the Defence Forces and GSOC are entitled to apply for those ministerial authorisations, while those three agencies, Revenue and the Competition and Consumer Protection Commission can avail of the powers in the 2011 act. The High Court ruled in December 2018 that the 2011 act, when used to investigate serious crime rather than matters of national security or lifesaving, was in breach of EU laws on individual rights.
Meenan wrote that in the various locations that he visited in order to gauge concerns with current arrangements “at each location” he was told of the 1993 Act being “considerably out of date having regard to technical developments that have taken place since”. The Department of Justice has said that changes to “modernise” these laws are “under construction”.
However, significant opposition to the expansion of State powers to intercept encrypted communications has been raised, with the Irish Council for Civil Liberties saying that such legislation “would be a significant breach of our privacy”, reasoning that such communications are important “for the security of activists, whistle-blowers, journalists and any member of the public who wants to communicate privately”. TJ McIntyre, an associate professor at the UCD School of Law, has also said that there is a “grave risk” that such measures “would in fact undermine security and privacy”.
