Competition watchdog to get new powers to electronically spy on cartels
Email interception and phone taps raise civil liberties fears
THE Government intends to give the Competition and Consumer Protection Commission (CCPC) sweeping new powers to carry out surveillance and intercept electronic communications to combat price fixing.
According to a consultation document published last week by the Department of Business, Employment and Innovation, Tánaiste Leo Varadkar is seeking changes to competition law to allow the CCPC to bypass An Garda Siochána and the Courts Service to gather evidence of white collar crimes.
The new law will include provisions to wiretap telephone conversations, access internet communications and obtain clandestine recordings of private meetings.
Currently the CCPC only has access to metadata, which shows when individuals have been communicating, but not the contents of those communications.
The change is part of a package of measures to strengthen the CCPC’s capacity to clamp down on business conspiracies.
They include new rules on bid-rigging and new authority to prosecute “gun jumping” on mergers, when parties complete a merger illicitly after failing to notify the commission.
“In order to ensure that the CCPC has sufficient power to gather all relevant evidence in investigations of cartels (and bid-rigging), and for that evidence to be admissible in both the investigation and any subsequent court proceedings, the Minister wishes to give the
CCPC the power to undertake: (i) Interception and recording of electronic communications; and (ii) Video and audio surveillance of suspects,” the document states.
The proposals would vastly increase the power of the CCPC to detect, investigate and prosecute illegal cartel activities, but would put Ireland out of step with much of Europe. Among EU states only Austria has similar provisions.
The forthcoming Competition (Amendment) Bill 2021 will transpose an EU directive into Irish law, but also includes amendments unrelated to the directive but increasing other powers of the CCPC.
Those other powers, which are the subject of the consultation, move Ireland closer to regimes in the US, UK, Australia, Canada and Israel.
Legal sources said the changes represented a significant extension of powers for the CCPC and would make it the only other State agency authorised to spy on suspected criminals. However, the sources said that the new law would help the CCPC uncover covert activity and meet the high burden of criminal evidence.
“Any powers such as these would need robust safeguards to protect us all from State over-reach into our lives,” said Liam Herrick, executive director of the Irish Council for Civil Liberties.
“These would include, for example, proof of necessity and a demonstration to show that any interception would be a proportional interference with our right to privacy. Systems of oversight of any proposed system of interception must be in place.”
Further provisions in the law would also allow the CCPC to retroactively undo mergers that it judges have substantially reduced competition in any market.