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February 2016 65
T
wenty years ago, Letterkenny gardai sent a
request to Garda HQ looking for selected
phone records in the county.
The request was part of the Donegal Garda
inquiry into the death of cattle dealer Ritchie
Barron, which was botched and complaints about
which, from an extended family, the McBreartys, led to
the Morris tribunal. Morris called for wide-ranging
reforms in Garda management. These have mostly not
materialised.
In 1995 Telecom Eireann was busy preparing for pri-
vatisation as Eircom, and part of that process included
major upgrades to the computer systems involved in
recording and billing for telephone calls. Unfortunately
for the Donegal gardaí, that meant their requests for
phone records were taking forever.
The law on Garda access to phone records was writ-
ten in 1993, following repeated scandals over the
bugging of journalists' phones by Charlie Haughey and
his slippery justice minister, Sean Doherty. In its first
year, Telecom Éireann received 234 Garda requests for
phone records. By 1997 the number of requests annu-
ally had grown to 1300. Michael Diffley, the Crime and
Security chief superintendent assigned to phone
traces, wrote to the company on 30 January 1997 to
complain that 503 non-Dublin phone requests were still
outstanding from the previous year.
An internal Eircom memorandum on 10 February 1997
showed only 45 of 358 Garda requests had been pro-
cessed between June and September 1996. Things
looked better between September and December 1996,
with only nine of 224 requests outstanding. However,
from December to February 1997, 62 of 117 requests
were not completed. The system was erratic at best.
In Donegal, as everywhere else, the delays ham-
pered investigations. After a senior officer at a
conference on the Barron case complained about the
delays, one garda spoke up. His brother-in-law worked
at Garda HQ – maybe he could pull a few strings.
“I contacted my brother in law, Detective Inspector
Patrick Nyhan, who is based in Crime and Security”,
garda John O'Toole later told the Morris tribunal. “I
explained the situation to him, that we had applied for
these through the normal channels, and that we had
experienced delays, and that there was frustration, and
asked him if he could help us get the phone calls, about
the information that we had sought”.
O'Toole read off a series of telephone numbers and
times to Nyhan, and “asked him if he could speed it up
or if he could get the calls”.
“And he said he would get back to me. And I think
about a week later or a number of days, a week later, he
contacted me by phone at the Garda station, and he
asked me for the fax number, and he faxed me down
information in relation to some of the phone calls. He
did say that he was unable to get incoming calls, and
was only able to get outgoing calls from some of the
numbers”.
The fax from Nyhan to O'Toole no longer exists. Since
O'Toole did not intend to use it in evidence, and he
“wasn't that happy about the manner in which I
obtained it and I didn't want to hold on to it' he and
another officer 'decided it be destroyed, and I destroyed
that information”.
Detective Inspector Patrick Nyhan was not called to
give evidence at the tribunal, but he was interviewed
by tribunal investigator Michael Finn on 5 October
2004, four days after O'Toole gave his evidence.
No one cares about
Garda retaining
phonecall data
From Haughey/Doherty via Morris
to GSOC and metadata
by Gerard Cunningham
Strangely the lesson the
Morris tribunal gleaned
from the bypassing of
surveillance safeguards
was that An Garda
Síochána needed more
surveillance powers
MEDIA
66 February 2016
The ubiquity
of mobile phones
effectively mean that
data retention can
reveal around-the-
clock information
on an individual’s
movements
MEDIA
Any resemblance to any Minister for Justice, alive or dead, is unintentional and coincidental
February 2016 67
Nyhan said he asked O'Toole if an official
application had been made, and was assured it
had. He took down the details, and went to see
his chief superintendent Michael Diffley to
“give it a push”, but Diffley was not in his office
when he called in. The 1993 Act required that
any request for telephone data should come
from a chief superintendent, and Diffley was the
designated liaison with Telecom Éireann at the
time.
Nyhan called the GPO Investigation Branch.
He spoke to “a fellow who was very helpful”,
though he could not recall his name. A week or
so later, he received an envelope with a compli-
ment slip through the internal mail system and
inside it was "a number of sheets with details
of telephone calls”.
Nyhan then faxed the sheets to Letterkenny.
He said this was the only time he had ever con-
tacted the Investigation Unit looking for
telephone records.
The word “illegal” is never used in the Morris
report to refer to the O'Toole/Nyhan search for
phone records. Neither is “unofficial” or “irreg-
ular”, both words used at tribunal hearings by
barristers as they danced around what O'Toole
and Nyhan had done. O'Toole's own barrister
merely referred to "procuring telephone
records...through a fast track channel”.
The strongest criticism of the operation came
from Donegal solicitor Paudge Dorrian who,
while questioning O'Toole on behalf of Sergeant
John White, said the records were “illegally and
improperly obtained”. In his report Justice
Morris described the incident as an “informal
enquiry”. The “fellow who was very helpful” in
the GPO was never identified.
Arising out of the incident, the Morris tribunal
made two recommendations. Neither has any-
thing to do with protecting customers’ data, as
demanded by the Data Protection Act 1988, and
safeguarded by the requirements of the Inter-
ception of Postal Packets and
Telecommunications Messages Act 1993.
Instead, the recommendations call on the
Communications Regulator to ensure that tel-
ephone operators respond quickly to Garda
requests, and for the Department of Justice to
look into storing phone records data from mul-
tiple telecoms providers in “an independent
databank”.
In other words, the lesson the tribunal
gleaned from the bypassing of surveillance
safeguards was that An Garda Síochána needed
more surveillance powers. Whether those rec-
ommendations were needed is a moot point. In
2001, Karlin Lillington had revealed that tele-
com operators were storing phone records for
up to six years, and chief superintendent Diffley
had told the Morris tribunal that An Garda
Síochána could often access call records within
“minutes” of a call being made.
The Morris report was published in May
2005, just as the Garda Síochána bill setting up
the Garda Inspectorate and GSOC and imple-
menting wide-ranging changes in Garda
organisation and management, was in its final
stages before Dáil Éireann.
One of the reforms in the bill was the setting
up of the Garda Síochána Ombudsman Commis-
sion (GSOC), replacing the toothless Garda
Complaints Board. In many spheres, GSOC was
given the same investigatory powers as An
Garda Síochána. The same year, data-retention
provisions were given a statutory basis in a sec-
tion added to the Criminal Justice
(Terrorist Offences ) Act after
the Data Protection Com-
missioner threatened
to order telecoms
providers to delete
the data they
were storing.
In September
2006. Digital
Rights Ireland
(DRI) challenged
Irish data-reten-
tion law,
including the 2005
Act, charging that
the laws were proce
-
durally flawed, and in
breach of the right to pri
-
vacy guaranteed under the Irish
Constitution and Article 8 of the European
Convention on Human Rights.
Meanwhile in a separate case, Austrian pri-
vacy activist Max Schrems sued the Irish data
protection commissioner over data held by
Facebook, which has its European headquar-
ters in Ireland, in a case which has pervasive
implications for data transfers between the EU
and USA.
In the DRI case, in April 2014, the Court of
Justice of the European Union declared the EU
data retention directive invalid. Since then, the
Irish state had twiddled its thumbs. DRI is back
in the Irish court later this month, seeking to
force the State to act in response to the Euro-
pean court finding.
In the meantime, phone data are still
retained, and still requested by investigators.
The story of Ireland and European surveil-
lance law is strangely under-reported. Karlin
Lillington has tracked the cases for several
years in the Irish Times, and her early articles
make prophetic reading now, yet most of her
work – and that of the few others who cover the
story – is consigned to the business or tech sec-
tions. The magnitude of official surveillance is
invisible to most journalists.
Or at least, it was, until it emerged in January
2016 that GSOC was using those surveillance
laws to investigate leaks, and so was monitor-
ing journalists' telephones. The data held by
Telecom Eireann in 1996 – time, date and dura-
tion of a call, and number dialled – was
metadata. In 1996, metadata were still a small
– though growing - part of surveillance. The
expansion of the internet, and of electronic
communications, has made it a much more
powerful surveillance tool since. The ubiquity
of mobile phones effectively mean that data
retention can reveal around-the-clock informa-
tion on an individual’s movements.
In the novel '1984', George Orwell
described the “telescreen”, a two-
way television in every home.
“Any sound that Winston
made, above the level of
a very low whisper,
would be picked up
by it; moreover, so
long as he remained
within the field of
vision which the
metal plate com
-
manded, he could
be seen as well as
heard. There was of
course no way of know-
ing whether you were
being watched at any given
moment. How often, or on what
system, the Thought Police plugged
in on any individual wire was guesswork. It was
even conceivable that they watched everybody
all the time. But at any rate they could plug in
your wire whenever they wanted to. You have
to live - did live, from habit that became instinct
- in the assumption that every sound you made
was overheard, and, except in darkness, every
movement scrutinised”.
Perhaps mindful of Orwell, or simply because
many of the judges remember the surveillance
states behind the Iron Curtain, the European
courts have held that mass data retention
amounts to mass surveillance. Ireland, insu
-
lated from World War and Cold War, has never
had to think hard about the surveillance soci-
ety. It is pretty much a certainty that a question
to almost any election hopeful about the DRI or
Schrems cases, and their impact on human
rights, foreign trade, or direct investment by
Silicon Valley in Ireland, would lead to blank
stares.
But those cases cannot be ignored, and suc-
cessive governments have been warned about
the risks in outmoded thinking on privacy for
close to two decades.
When the edifice collapses, don't let anyone
claim they were not told of the risks.
In 2005 Morris
reported, GSOC was
established and data
retention provisions were
given a statutory basis
in the Criminal Justice
(Terrorist Offences)
Act
