Spy laws out of date, say security agencies
State agencies tackling organised crime and terrorism say they are having to use phone tapping laws which are “considerably out of date”, a judicial report reveals.
A judge supervising spy laws also alerted the Government to concerns that court rulings on the illegality of separate laws on accessing communication data were having a “detrimental” effect on investigations.
The stark messages are contained in a report by Mr Justice Charles Meenan to the Taoiseach as part of a review process of the use of key parts of the State’s spy laws.
In relation to phone tapping, the judge cites “technical developments” since the 1993 interception legislation was enacted.
While he does not specify the problems, security sources told the Irish Examiner that the antiquated laws are not flexible enough to cover interception of encrypted communications or social media messaging.
Security sources have said that encrypted phones are used by organised crime gangs to direct drug trafficking, money laundering, shooting and murders and posed a “huge problem” to investigators.
Major gangs regularly circulate these phones to members at a cost of around €1,500-€1,600 each.
Sources have stressed that as well as modern laws, security services need the technical ability, in terms of equipment and trained staff, to try and breach encryption.
Mr Justice Meenan is the designated judge to check usage of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and Section 12 (1) (C) of the Communications (Retention of Data) Act 2011.
The 1993 act allows for the interception of communications, on foot of authorisation by the Minister for Justice, while the 2011 Act allows agencies to seek traffic data (which does not include excludes content of messages) from phone and online companies.
Gardaí, the Defence Forces and, since 2015, GSOC, are empowered to apply for authorisations.
These three agencies, as well as Revenue and the Competition and Consumer Protection Commission, can use the 2011 Act.
The High Court ruled last December that the 2011 act, specifically in relation to the investigation of serious crime (not national security or saving lives) breached EU law on individual rights.
The judgment arose from a case taken by convicted murderer Graham Dwyer. His prosecution included evidence from his mobile phone data secured under the 2011 act. The State is appealing the judgment.
Mr Justice Meenan said he visited agencies and met staff responsible for availing of the powers and was satisfied their procedures were “appropriate” and had “due regard” to privacy rights.
In his two-page report, written last month, he said he was satisfied the staff “exercise their powers proportionally and responsibly”.
The High Court judge said it did not appear there had been “a significant increase” in the use of the powers in the last 12 months. The report did not give any statistical information on usage.
Mr Justice Meenan said that “at each location” he went to, officers raised two concerns:
That the 1993 Act was, at this stage “considerably out of date having regard to technical developments that have taken place since”;
The issue that had arisen concerning the legality of the S 6 (1) (a) of the 2011 Act – relating to serious crime – had resulted in this provision “not being relied upon to the detriment of investigations”.
The Department of Justice said legislative changes to “modernise” interception laws were “under consideration”.
On communications data, it said EU member states, including Ireland, have been, or are currently, involved in national or European court cases challenging national data retention regimes.
It said the Data Retention Bill, which had been due at the start of this year, was at an advanced stage and that would reference the High Court judgement, which the State was appealing.
