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Ireland's political and cultural magazine
July 2016 4 3
J
ustice minister Frances Fitzgerald's
proposal to expand Irish surveillance
and interception laws to include
social media and email accounts,
coming only weeks after a row over
interception of journalists' communications by
GSOC, is ill-advised and unlikely to achieve its
stated aims, a leading privacy advocate has
said.
The proposed changes would allow gardaí to
"intercept the emails, social media and instant
messages of suspected terrorists and organised
criminals", according to media reports.
But the changes would have little impact
because most internet companies are subject to
US law, and could serve to undermine trust in
Ireland as a location for online businesses,
according to Digital Rights Ireland (DRI) chair-
man TJ McIntyre, a lecturer in Law at the UCD
Sutherland School.
"We don't know what this is going to look like
yet, but the key point to start with is that exist-
ing intercept law is based on the minister signing
a warrant, which is then taken over to a tele-
phone company like Eircom or Vodafone, who
then put a tap on your call”, said McIntyre.
He considers what they're talking about is
extending the existing powers: “That would
mean that they want to mirror the existing
system, so that they get the minister's signature
and then go to Google or WhatsApp and demand
messages. But none of the US firms are going to
accept a politician's signature to disclose con-
tent. And in many cases, US law is going to
preclude them from doing that anyway”.
What is going to happen he believes is that,
essentially, we will have no change from the cur-
rent position, which is that “if gardaí want
access to communications on a US-based ser-
vice, even if that service has a local office in
Ireland, then they will, in almost every case, still
have to go down the Mutual Legal Assistance
Treaty (MLAT) route, and send a request to
Washington which is then processed there
locally according to American standards”.
So if you want to get somebody's message
content on a US server, from a US-based pro-
vider, normally that would mean the MLAT
request goes from Dublin to Washington. It is
then processed locally, before going to a US
judge and then an order would be made locally
requiring disclosure.
McIntyre notes that: “Microsoft and Facebook
are outliers: they have deliberately chosen to
apply Irish law to the data that they host. So they
have local hosting here, and their position is
that Irish law governs what's hosted locally”.
But in a case like Google, you would probably
find that the control of communications is based
in California.
According to McIntyre: "The minimum Euro
-
pean standards for oversight are that you need
an independent judge making the decision, not
a politician, you need adequate oversight, which
we don't currently have (in one case, the judge
forgot about it and had to be prompted to do it),
and you need to have special protections in
place, at least for journalists, and preferably for
lawyer-client communications, and communica-
tions with parliamentarians”.
He tells me it’s difficult to know in practice
how this is intended to operate. “For firms head
-
quartered in the US, it’s not going to change
anything. You can get an Irish ministerial signa-
ture, you can get an Irish court order, but many
firms won't be in a position to comply even if
they wanted to. The technical capacity to comply
may not even be in Ireland”.
It may be that the department of justice thinks
differently. He considers it “may be that they
think all these companies are based in the
Dublin docklands and therefore can be told what
to do. But if that's their reasoning, I suspect
they're in for something of a disappointment”.
The other risk is that tech firms may take
fright at this. Even if it doesn't apply to their
business, it's something that can undermine the
reputation of Ireland for privacy, and undermine
trust in companies based here.”If their clients
don't feel confident in companies with opera-
tions in Ireland, those companies may just move
to reassure their customers. So I suspect you
will see opposition to this proposal from the
tech firms”.
McIntyre says this is an area that needs to be
modernised, and claims it would be a good thing
if this was the impetus to modernise surveil-
lance laws with proper safeguards. For the
moment he regrets that “it seems they're draft-
ing this as usual in secret with no public
consultation”. He feels it is really “quite outra-
geous, particularly given they're already lost
one case on surveillance litigation in the Euro-
pean Court of Justice, and are on track to lose
the second aspect of that case in the High Court
in Dublin”.
Internet surveillance
law mirrors regime
for ordinary mail
But US firms may decide not to comply
with Irish Law, which is below European
standards; and new regime undermines
Ireland’s reputation for protecting privacy
Gerard Cunningham interviews TJ McIntyre
They want to mirror the
existing system, so that
they get the minister's
signature and then go
to Google or WhatsApp
and demand messages.
But none of the US firms
are going to accept a
politician's signature to
disclose content
