Minister says phone data retention order will ‘safeguard’ State security

Minister for Justice Helen McEntee has secured a High Court order requiring mobile phone service providers to retain users’ data for 12 months for the purpose of “safeguarding the security of the State”.

The case follows the successful legal challenge by convicted murderer Graham Dwyer to legislation under which certain mobile phone data was retained and accessed and used in his prosecution for the 2012 murder of childcare worker Elaine O’Hara.

An amendment to the legislation, the Communications Retention of Data (Amendment) Act 2022, came into operation this week. It facilitates the “general and indiscriminate” retention of specific data if a High Court judge rules it is in the interests of national security. Where the Minister for Justice is satisfied that there exists a serious and genuine, present or foreseeable threat to the security of the State, they may make an application to the High Court.

“As is required, Minister McEntee, prior to making the application, assessed the threat to the security of the State and had regard to the necessity and proportionality of the retention of [data] taking into account the impact of such retention on the fundamental rights of individuals,” the Department of Justice said in a statement. “The Minister also consulted with the Garda Commissioner prior to making the application.”

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The data which will be retained includes information on mobile phone users, who they were communicating with and where they were at the time of calls being made or messages being sent.

Ms McEntee said she made the application “having assessed the threat to the security of the State and having satisfied myself that there exists a serious and genuine, present or foreseeable threat to the security of the State and that such threat is likely to continue for at least the next 12 months”.

She had “regard to the necessity and proportionality of the retention of the data concerned, and took account of the impact on the fundamental rights of individuals as required,” she said.

“The 2022 Act was developed in light of important European Court of Justice rulings in this area and the provisions under which I applied for this order reflects the case law of that court.”

The Court of Justice of the EU (CJEU) ruled in favour of Dwyer’s data challenge finding that EU law did not support indiscriminate retention of data for the purpose of combating serious crime without independent oversight. The court said it was up to the Irish judicial system to “determine whether any mobile phone data gathered in respect of any criminal investigation should be admissible on a case-by-case basis”.

Dwyer sought to rely on the CJEU ruling in his appeal last March against his murder conviction, but his appeal was dismissed.

As part of their investigations into the murder of Ms O’Hara, gardaí retrieved a phone from Vartry Reservoir in Co Wicklow in 2015, and were able to determine it had been used by Dwyer to contact her.