In January, Justice Minister Frances Fitzgerald appointed Mr Justice John Murray to review data retention legislation. His report was expected within three months. Six months on, the Department of Justice tells Donal O’Keeffe “it is not possible to say precisely when it will be completed”.
In 2011, Enda Kenny declared “a democratic revolution”. Revelations of journalists’ and private citizens’ phone records being accessed by State authorities show the revolution is in tatters and our democracy is a lot less secure than we might have thought.
The Irish Times reported earlier this year that the Gardai, the Garda Siochana Ombudsman Commission (GSOC), the Defence Forces and the Revenue Commissioners made – over a five year period – 62,000 applications to service providers to access private citizens’ landline, mobile phone and internet data. This came on foot of the rumbling story about GSOC accessing the phone records of journalists to investigate possible leaks by Gardai, something GSOC did entirely legally. Further, GSOC did not need to inform the journalists concerned because of new powers GSOC acquired under last year’s amendment to the Communications (Retention of Data) Act 2011.
The Taoiseach was quick out of the traps to proclaim the importance of protecting journalists’ sources and to say that legislation might be needed to protect those sources.
Justice Minister Frances Fitzgerald insisted she had not authorised the tapping of journalists’ phones (I don’t think anyone had actually accused her of doing so). Fitzgerald then appointed former chief justice Mr Justice John Murray to review the legislation in question. Perhaps in the land of Charlie Haughey’s phonetaps, Minister Fitzgerald’s jitteriness is justified. It was expected that Mr Justice Murray would report in three months (presumably around the start of May) by which time the election would be long out of the way.
This was clearly a kick to touch in the hope that privacy and data retention would not become an election issue. As it happened, both parties of the outgoing government went on to commit so many unforced errors during the campaign that data protection never reared its head.
At the time of the announcement of Justice Murray’s review, the Irish Independent’s Dearbhail McDonald tweeted: “The outcome of the investigation into #gsoc investigation into gardai/journalists? Expert will say they acted within the law. #you’rewelcome”
There’s the point. Mr Justice Murray’s unquestioned bona fides aside, after the fact is hardly the best time to question legislation. The best time to question legislation is surely before it is enacted.
You’d wonder why on Earth the Taoiseach and Justice Minister were so surprised at the consequences of legislation they actually passed. Would this be what happens when you had the largest majority in the history of the State and treat the Dáil with utter contempt?
Would this be what happens when, instead of actually answering opposition questions, you instead routinely looked to your own internal drop-down menu and selected your preferred standard insult such as “I don’t propose to take lectures from you, Deputy Martin” or “You have some cheek coming in here, Deputy Adams”?
Would this be what happens when your government’s default policy was forcing through legislation without allowing it proper debate and consideration and when you employed the guillotine so often that the Ceann Comhairle might as well have taken up knitting?
For all of Enda’s talk about a democratic revolution, he and his first government made a virtue of treating not just the opposition, but their own back-benches too, as no better than a rubber stamp for their legislative agenda. It could be argued that all governments do this but our democratic revolutionaries in the last government did so with a zeal bordering on the religious.
When I tweeted at the weekend asking whether anyone had any idea if Mr Justice John Murray had published his report (perhaps I had slept through it) the journalist Gerard Cunningham replied “Awkward reports tend to be published shortly after the Dáil goes into recess and the Magill (summer school) finishes up”.
Given that we’re into July now, I rang the Department of Justice Press Office on Monday morning to ask if there was any sign of Mr Justice John Murray’s report and when it was likely to be published.
The reply was interesting.
“(T)he work of the review involves the analysis of complex aspects of Irish and international law in this area as well as consultation with relevant agencies and stakeholders. Given the complexity of the work involved and the need to receive and consider submissions and observations from a range of agencies and stakeholders it is not possible to say precisely when it will be completed.
“Obtaining responses from some key stakeholders has taken longer than expected, however, Judge Murray is anxious to complete the review as quickly as possible consistent with a comprehensive assessment of the issues involved.”
At the time of going to press, I hadn’t received a reply to my follow-up question “Are we talking this year, do you think?” but with a kick to touch like that, Frances Fitzgerald shouldn’t be too surprised if she gets a call-up from Joe Schmidt.
The fact that State authorities can routinely access journalists’ records is something which should be a national scandal, but the real problem is that the GSOC story is only the tip of Ireland’s data retention iceberg. Of even greater concern should be that we can all be monitored by the State without even the need for the judicial equivalent of a search warrant and this has been going on for years, under successive governments. This is something which should exercise every citizen and every politician in the country.
Quite simply, Ireland has some of the most draconian data retention legislation in the world, with telecommunications providers obliged to hand over data retained for some of the longest periods in the world to State authorities subjected to some of the weakest oversight and legal constraints in the world.
Every man, woman and child in Ireland has been living in a culture of mass surveillance since the turn of the century. Successive governments have rammed through data retention legislation which allows the Gardai, GSOC, the Defence Forces and the Revenue Commissioners access any of our private communications and those State authorities need no permission whatsoever to do so. The only oversight at all of this process is a single, one-page document, signed off annually by a judge.
This isn’t bored Gardai looking up PULSE to check on their exes or to see how many penalty points yer man off the telly has. This isn’t drug-dealers on pay-as-you-go phones pretending they’re in The Wire. This is your private telephone call, your private text message, your private email.
Think about that. Are you feeling paranoid yet?
Mind you, it’s hardly paranoia if you actually know you are under surveillance.