Dwyer High Court ap­peal puts State sur­veil­lance in spot­light

Care must be taken when en­croach­ing on peo­ple’s pri­vacy, says judge

The Irish Times - - Home News - Colm Keena Le­gal Af­fairs Cor­re­spon­dent

The chill­ing ef­fect on pri­vacy and other rights by ac­tual, feared and manda­tory sur­veil­lance can­not be un­der­es­ti­mated, a High Court judge said in a rul­ing this week on the State’s hoard­ing of peo­ple’s tele­phone data which fol­lowed a case taken by con­victed mur­derer Gra­ham Dwyer.

Cit­ing Ge­orge Or­well’s dystopian novel 1984, Mr Jus­tice Tony O’Con­nor said the State should “tread care­fully” when en­croach­ing on peo­ple’s dig­nity and pri­vacy by ac­cess­ing highly sen­si­tive in­for­ma­tion.

The Court of Jus­tice of the Euro­pean Union has ruled against the blan­ket, as against tar­geted, col­lec­tion by the State of sen­si­tive data about peo­ple’s tele­phone use.

In­ves­ti­ga­tions

How­ever, Ire­land has ar­gued that it does not make sense to say that the only data that can be re­tained should be that of peo­ple the State has con­cerns about, as crim­i­nal in­ves­ti­ga­tions can of­ten lead to peo­ple com­ing to the Garda’s at­ten­tion for the first time.

The con­vo­luted le­gal sit­u­a­tion that has arisen be­cause of the po­si­tion taken by the Court of Jus­tice forms the back­drop to the rul­ing in the case taken by Dwyer, who has chal­lenged the le­gal­ity of the State’s data re­ten­tion laws.

It has been known for some time that the Ir­ish law was prob­a­bly not com­pli­ant with EU court rul­ings and new leg­is­la­tion is be­ing drafted.

Phone op­er­a­tors

Dwyer was found guilty in 2015 of the mur­der of child­care worker Elaine O’Hara, whose re­mains were found at Kil­la­kee Moun­tain, Rath­farn­ham, Dublin, in Septem­ber 2013.

The ev­i­dence used to con­vict Dwyer in­cluded in­for­ma­tion ac­cessed by the Garda in­ves­ti­ga­tion team us­ing data re­ten­tion rules that re­quire phone op­er­a­tors to re­tain in­for­ma­tion for two years.

The Garda has a Tele­coms Li­ai­son Unit (TLU) which re­ceives hun­dreds of re­quests ev­ery month for ac­cess to highly

per­sonal in­for­ma­tion which can dis­close a per­son’s move­ments and who they have been in con­tact with over fixed-line and mo­bile phones.

The use of the sys­tem has proven to be highly valu­able in in­ves­ti­ga­tions into se­ri­ous crime. Peo­ple whose data has been ac­cessed do not have any right to be in­formed of the fact. The bulk of the ac­cess re­mains a se­cret.

In his judg­ment, Mr Jus­tice O’Con­nor noted that the of­fi­cer in charge of the TLU, who is obliged to en­sure that all re­quests are nec­es­sary, ap­pro­pri­ate and pro­por­tional, might re­ceive a re­quest for ac­cess from a higher-rank­ing of­fi­cer who is lead­ing an in­ves­ti­ga­tion. This “does not fit with the con­cept of an in­de­pen­dent au­thor­ity”.

Like­wise the judge noted that the sys­tem does not al­low for cit­i­zens whose pri­vacy has been en­croached upon to find out that this has oc­curred. There are no ad­e­quate leg­isla­tive guar­an­tees against abuse and “too much is left to those who im­ple­ment and utilise the ac­cess pro­vi­sions”.

In­ter­net data

The use of text mes­sages is “vastly de­creas­ing” be­cause younger peo­ple tend to use so­cial me­dia plat­forms for com­mu­ni­ca­tion, and so re­tained tele­phone data is be­com­ing less use­ful for those in­ves­ti­gat­ing crime, Mr Jus­tice O’Con­nor was told. In­ter­net data is re­tained for one year as against the two years that ap­plies for tele­phone data.

The data re­ten­tion sys­tem, which is also used for State se­cu­rity and other rea­sons, will re­main in place de­spite this week’s rul­ing.

Whether Mr Jus­tice O’Con­nor’s rul­ing will as­sist Dwyer in his ap­peal against his con­vic­tion re­mains to be seen.

Mr Jus­tice O’Con­nor heard ar­gu­ment that sur­veil­lance only oc­curs when re­tained data is ac­tu­ally ac­cessed and that it is the control over how ac­cess is achieved that is the key is­sue.

The Ir­ish Hu­man Rights and Equal­ity Com­mis­sion has said it be­lieves that legally ro­bust safe­guards would bol­ster the use of com­mu­ni­ca­tions ev­i­dence in crim­i­nal tri­als. “It will closely fol­low any leg­isla­tive progress in this re­gard,” it said in a state­ment in the wake of this week’s judg­ment.

Ev­i­dence used to con­vict Gra­ham Dwyer in­cluded data gath­ered by gar­daí

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