Data retention orders will only be permitted on national security grounds under new legislation

Gardaí and judges will be able order the retention of communications data solely on national security grounds, under new legislation announced by the Government.

Minister for Justice Helen McEntee published the general scheme of the legislation on Tuesday evening. The legislation will give effect to the recent judgment by the European Court of Justice (ECJ) which effectively struck down Ireland’s data retention scheme as overly broad.

The judgment resulted from a case brought by Graham Dwyer as part of an appeal against his conviction for the murder of Elaine O’Hara in 2015. Mobile phone location data was an important part of the State’s case against the architect in showing his movements before the murder.

Under the Communications (Retention of Data) (Amendment) Bill 2022 “general and indiscriminate retention of communications traffic and location data” will only be allowed on national security grounds and will require approval by a designated High Court judge.

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In urgent circumstances and if a judge is not available, general data retention may be approved by a senior Garda or Defence Forces officer. However these decisions will later be reviewed by a judge to determine if they were appropriate.

Under the system, officials can apply for data to be retained for up to twelve months on specific individuals or groups of people. But companies will not be required to retain data on anyone else outside specific orders.

As expected, the new regime will significantly impact the ability of gardaí to access mobile phone records on suspects in criminal investigation. Under the previous system, telecoms companies were required to retain data on all customers for two years.

However, the legislation will also provide for a “quick freeze” system which will allow judges to order a telecommunications company to retain the data of a person once they become a suspect in a serious offence.

These preservation orders will require companies “to retain any specified data they hold at a particular point in time for a period”. They will be available for both national security and serious crime investigations and will also require the approval of a designated judge.

preservation orders may be sought by the Garda, the Defence Forces, Revenue or the Competition and Consumer Protection Commission for defined reasons, including the need to save lives and prevent serious offences. Those seeking preservation orders will be obliged to present specific justification to a designated judge

The legislation also provides for a production order which will allow authorities access to data held by telecoms companies in national security or law enforcement matters.

“The effect of a production order will be that a service provider must immediately take steps to produce and hand over to the relevant state agency the data described in the order made by an authorised judge,” the Department of Justice said.

Ms McEntee said it is vital gardaí do not “have their hands tied behind their backs”. She said there must be safeguards regarding personal data but that the balance “must not shift too far away from keeping people safe and fighting crime”.

She said there is an urgent need to progress the bill to provide legal certainty to telecoms companies and State agencies on their obligations.

Dwyer’s full appeal of his conviction is expected to be heard by the Court of Appeal before the end of the year.