Government sued over ‘mass surveillance’ claim

14 Sep 2006

Online civil rights group Digital Rights Ireland (DRI) has launched a High Court action against the Irish Government challenging new laws it claims usher in mass surveillance.

The group is challenging the law on data retention by ISPs and telcos contained in the Criminal Justice (Terrorist Offences) Act 2005 and the European Data Retention Directive passed in 2006.

The High Court action has been commenced in the High Court by McGarr Solicitors on behalf of DRI and names as defendants the Minister for Communications, Marine and Natural Resources, the Minister for Justice, Equality and Law Reform, the Garda Commissioner, Ireland and the Attorney General.

If the group is successful it could undermine contentious EU legislation that could force fixed-line operators, mobile operators and ISPs to retain all voice, fax, email, internet and mobile records for up to five years.

“A ruling from the European Court of Justice that data retention is contrary to human rights will be binding on all member states, their courts and the EU institutions,” DRI chairman TJ McIntyre said.

“These laws require telephone companies and internet service providers to spy on all customers, logging their movements, their telephone calls, their emails and their internet access and to store that information for up to three years. This information can then be accessed without any court order or other adequate safeguard.”

McIntyre said he and his colleagues believe that this is a breach of fundamental rights. “We have written to the Government raising our concerns but, as they have failed to take any action, we are now forced to start legal proceedings.

“Accordingly, we have now launched a legal challenge to the Irish Government’s power to pass these laws. We say that it is contrary to the Irish constitution as well as Irish and European data protection laws,” said McIntyre.

DRI is positioning the new laws as an attack on private life. “These mass surveillance laws are a direct, deliberate attack on our right to have a private life without undue interference by the Government. That right is underpinned in the laws of European countries and is also explicitly stated in Article 8 of the European Convention on Human Rights. The Article specifies that public authorities may only interfere with this right in narrowly defined circumstances.”

He continued: “The information will be collected and stored on everyone, regardless of whether you are a criminal, a policeman, a priest, a judge or an ordinary citizen. Once collected, this information is wide open to misappropriation and misuse. No evidence has been produced to suggest that data retention laws will do anything to stop terrorism or organised crime.”

McIntyre said he accepted that while law enforcement agencies must have access to some call data, access must be proportionate. As well as this there should be clear evidence of a need to move beyond the six months of storage currently used by telecom firms for billing purposes.

“Neither the European Commission nor the European police forces have made any case as to why they might require years of data to be retained,” McIntyre said.

By John Kennedy