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The Irish Government has approved the outline of a Bill which, if passed by Parliament, will permit police to break into private property to plant covert audio bugs and video cameras. The Covert Surveillance Bill is intended to legitimise what is already believed to be existing practice, to make Irish law compliant with the European Convention on Human Rights and to allow evidence obtained in this way to be used in court. Judicial approval will be required before this can be done, except in exceptional circumstances.

The procedure to deal with cases of exceptional urgency is too lax. Under the Bill as it stands those cases would bypass the judicial process entirely, so that surveillance could take place for up to 14 days without any authorisation. There must be a question mark as to whether this provision would be constitutional if it was used to break into and bug a dwelling. Instead, it would be preferable to deal with cases of urgency by permitting Gardaí to commence surveillance without a judicial authorisation but then requiring that an application be made to the District Court for permission to continue the surveillance.

Despite its broad title, the Bill addresses only one very narrow area - the covert surveillance of locations by devices which are physically planted in those locations. Many other forms of surveillance - such as the use of GPS devices to track the position of cars, the use of long range cameras and microphones to monitor locations from a distance and live monitoring of Internet activity - will still be entirely unregulated. As a result there will continue to be doubt as to whether Gardaí have the power to use these types of surveillance and as to whether the resulting evidence can be used in criminal prosecutions.

Meanwhile, although there is some legislation regulating other forms of surveillance such as the interception of communications, data retention and Garda use of CCTV, that legislation has developed on an ad hoc and reactive basis with few consistent principles applying to its use or oversight. Much of it is also out of date, most notably the 1993 interception of communications legislation which due to technological changes no longer adequately protects email and other Internet communications.

Considered as a whole therefore, the wider Irish law is inadequate. Given that many of these issues were flagged by the Law Reform Commission in 1998, it is hard to see any justification for the failure to address them to date. Although this Bill does provide for some improvements, it is at best a piecemeal response which will not address similar problems with other forms of surveillance. It is clear that the time has come for comprehensive reform of the overall law relating to surveillance. This Bill is a good first step towards that reform. But it is only a first step, and it would be regrettable if the government were to continue to ignore this area until forced to act by another highly visible crime.

Government approves covert Garda measures (18.11.2008)
http://www.irishtimes.com/newspaper/breaking/2008/1118/breaking63.htm

Time to take a close look at surveillance (28.11.2008)
http://www.digitalrights.ie/2008/11/28/time-to-take-a-close-look-at-su...

(contribution by TJ McIntyre - EDRi-member Digital Rights Ireland)