17/12/14 Senator Daly addresses the Seanad and Minister for Justice and Equality Frances Fitzgerald on Communications Surveillance

Senator Daly: I welcome the Minister to the House and thank her for coming in personally to give her response to this. I also thank Senator Reilly for sharing time with me.

It is amazing that we have a situation in which mass surveillance is taking place on telecommunications from this State. Like Senator Reilly, I am amazed that there seems to be no concern about another government surveying everything that goes out of this country. If the Garda Síochána or the Irish Defence Forces was doing it, or the Minister’s Department was sanctioning the surveillance of Irish citizens – any one citizen or a journalist – there would be outcry and outrage, and we would hear about it all day every day. There are 6 million people on this island and every communication that is going out of this country, as we understand it, is being monitored, scrutinised and is under surveillance. For the life of me, I cannot understand why, when it is on this scale, there is nothing, not even a whisper, in response. It is perhaps part of a post-colonial stress disorder which we may be suffering that the thought of a revelation by a whistleblower, Edward Snowden, which was revealed in the German newspapers, created nothing in terms of outcry by the entire population, and not only by the population, the media did not seem to be concerned about it. I am certain that if the Irish State was surveying the same citizens, there would be an outcry. For some reason, because it is a foreign entity, it seems to be acceptable.

I am also concerned that some operators, cable and wireless, are getting millions of pounds in compensation because of this programme with the Government Communications Headquarters in Britain. They are profiteering from this. Vodafone and other commercial entities, under legislation, have to co-operate. Yet, there is no right of appeal and we do not know what they are being asked to hand over. I am concerned and I would like to hear the Minister’s response on this, because it is blanket surveillance. The argument will be made that we have a friendly neighbour. Friendly neighbours do not spy on each other.

On a different matter, I thank the Minister for taking the issue of the hooded men to the European court. This is an issue that is of equal relevance today as it was when it was taken nearly 40 years ago. The ruling of Europe on the hooded men was used as a justification for torture in Iraq and Afghanistan. That decision in Europe has to be reversed. Only Ireland can do it. I hope the Minister succeeds in that regard because there are innocent people, now and in the future, relying on the Minister succeeding in that case.

Minister Fitzgerald: Communications Surveillance: 17 Dec 2014: Seanad debates (KildareStreet.com)https://www.google-analytics.com/plugins/ua/linkid.js//www.google-analytics.com/analytics.js/js/main.js//

I thank the Senators for raising these important issues and for the opportunity to respond to the points made. There has been much confusion around the commencement of Part 3 of the Criminal Justice (Mutual Assistance) Act 2008. The 2008 Act gives effect to the EU Convention on mutual assistance in criminal matters. It applies only to mutual assistance in criminal matters and does not provide for assistance for intelligence gathering purposes. I want to be absolutely clear about that. The need to commence Part 3 at this time arises from the changes brought about to the structure of the EU as a result of the Treaty of Lisbon. In accordance with that treaty, instruments providing for co-operation in police and criminal justice matters have to be implemented within 5 years of the Treaty coming into effect, that is by December 2014.

Furthermore, these measures, including the EU convention, have been brought within the jurisdiction of the European Court of Justice from 1 December 2014. In order to accede to the convention, which we have done, all parts of the 2008 Act had to be brought into force. Therefore, had Ireland not commenced Part 3 by 1 December, it risked infringement proceedings and potential fines.
The 2008 Act is the basis for Ireland’s mutual legal assistance arrangements with other EU member states and has worked well since the other parts of the Act came into force. Part 3 of the Act deals with mutual assistance co-operation on the lawful interception of communications. What it means in practice is that where a lawful interception order is in place in one EU state for the investigation of serious crime, it can be given effect in another state but only in accordance with the domestic law.
In Ireland the relevant domestic law is the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, the operation of which is overseen by a designated judge of the High Court. The provisions are reciprocal so the Garda can request this type of assistance from other member states. Members will appreciate that, given the international nature of crime these days, there is an absolute need for this type of co-operation.
There has been media comment, some of which was somewhat exaggerated, about the provision for in camera court hearings for a failure by a company to comply with directions issued by the Minister for Communications, Energy and Natural Resources under the 1983 telecommunications Act. The provision arises because, obviously, it would not be appropriate in open court to disclose who might be the subject of an interception order in the investigation of a serious crime. That would amount to a criminals’ charter to frustrate lawful investigations. We could not allow that.
There have been recent media reports on the GCHQ in the UK. I would like to state clearly at the outset that there is no question of any form of mass surveillance being carried out in Ireland. It is important to point out that the implication was that it is happening within the UK’s jurisdiction. However, it is very clear that every country makes its own legal arrangements for lawful interception. I would expect that any such measures, if they were ever in operation, would have a proper legal basis and that the level of interference would be proportionate to the aim sought to be achieved, in any given country’s legal approach.
My colleague, the Minister for Foreign Affairs and Trade, Deputy Flanagan, has been in contact with the British Embassy. He repeated the point that friendly relations between states include acceptance of the principle that the privacy of communications must be fully respected. This is a principle Ireland has outlined in international fora and in policy statements. The need to protect people from terrorist and other criminal threats is acknowledged.
However, it is always necessary to ensure that the information is properly obtained and subject to appropriate safeguards. I would expect the UK and other states to follow these principles. As I have already stated, in this jurisdiction, such matters are governed by legislation and there is no question of any form of mass surveillance here.

Senator Daly: I thank the Minister. The response from the Minister for Foreign Affairs and Trade had all the forcefulness of a tenant going to a landlord looking for a rent reduction. He asked for the general principle to be followed. We have brought this forward in international forums. The Minister for Foreign Affairs and Trade should ask for a report from the British Government, outlining whether there is truth behind what Edward Snowdon revealed. He did not reveal the information for his own self motivation or profit. He did so because he saw countries acting inappropriately. Reference was made to friendly relations.

We barely pursued the hooded men case to Europe. We did so a matter of days before the deadline expired, and only because the case was being taken to the High Court. The report from the British Government should clarify whether mass surveillance is happening and what legislation is backing it up. We accept Edward Snowdon’s documents, but Britain does not. We should not say we hope it is not doing anything inappropriate, rather, we should tell it to send us a report on what it is doing and what Edward Snowdon revealed.

Minister Fitzgerald: As I have made clear, this is a topic which the Minister for Foreign Affairs and Trade has raised. I have given an indication of the general principles which would be behind such a discussion. Clearly, the Minister would be in a position to give more detail. It is important to reiterate that there is no question of any form of mass surveillance taking place in this jurisdiction. I have made it very clear that lawful interception takes place on a very strict basis with very clear guidelines in place, and for the limited purposes of combatting serious crime or to protect the security of the State.

I have said what legislation applies and that it is overseen by a judge of the High Court. It is sometimes a necessary tool for states and everybody would understand that. We will make it clear in any discussions at any level with all relevant people that, as is the case in this jurisdiction, there has to be a solid legal base which is proportionate to the aim to be achieved. I have already said that the Department of Foreign Affairs and Trade has raised these concerns with the UK. We will consistently, at every level, reiterate our belief that the principles I have outlined should apply to all decisions taken in this area.

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