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a. Data Retention Litigation

The Digital Rights Ireland litigation against data retention, which was started in September 2006, continues before the High Court. This action challenges both the Directive and also Ireland's domestic data retention laws. It alleges that those laws are procedurally flawed and are also in breach of the right to privacy guaranteed under the Irish Constitution and Article 8 of the European Convention on Human Rights. It also argues that data retention will have a chilling effect on the Constitutional and ECHR rights to freedom of expression and association. In addition, the action argues that the tracking of the movements of any person carrying a mobile telephone interferes with the right to travel under the Constitution. The action alleges that these infringements of personal rights are neither proportionate nor necessary in a democratic society.

At the time of writing the action is at the interlocutory stages and awaits a full hearing. Two preliminary matters are currently before the court. The Irish Human Rights Commission (a statutory body) has made an application for permission to intervene in the case as an amicus curiae. The defendants have also indicated their intention to challenge the locus standi of Digital Rights Ireland to bring the case. Both applications have yet to be ruled on by the court.

b. Implementation of the Data Retention Directive

The Irish Government has confirmed reports that it intends to implement the Data Retention Directive by an order of a Minister rather than legislation passed by Parliament. Ireland did not avail of the derogation under the Directive to delay implementation in respect of internet traffic data. Consequently Ireland is now late in implementation and has received a warning letter from the Commission. The Government has decided to implement the Directive notwithstanding its own challenge to the legal basis of the Directive, which is before the European Court of Justice and awaits a hearing.

The decision to implement the Directive by Ministerial order has been criticised for excluding democratic oversight by legislators and as being taken without proper consultation. Paul Durrant, director of the Internet Service Providers Association of Ireland (ISPAI) has said that: "The ISPAI is disappointed that such an all pervasive measure . . . should be enacted without being subjected to the full rigours of (parliamentary) debate and the public exposure that brings."

Digital Rights Ireland said that: "It is incredible that the Government proposes to introduce a law which would require every Internet user to be monitored without any warrant or prior judicial approval, without any public consultation and without any debate or vote in Parliament. A law of this gravity should not be made by stealth. The Department of Justice appears to be relying on the "urgency" of the matter to justify bypassing Parliament. But the European law being implemented was passed in February 2006. The Department has had two years to introduce a law and it cannot rely on its own delay to justify sidelining democratic scrutiny. In any case, it is inappropriate to implement this law whilst it is under court challenge. The Irish government itself has challenged the validity of the law before the European Court of Justice. Digital Rights Ireland has also brought a High Court action challenging the European law. These proposals will effectively pre-empt the judgment of the courts."

Alarm bells ring over data retention(7.12.2007)
http://www.techno-culture.com/?p=131

E-Mail and chat data to be stored 'within a month' (19.01.2008)
http://www.ireland.com/newspaper/frontpage/2008/0119/1200605160420.htm...

DRI condemns backdoor implementation of surveillance laws (19.01.2008)
http://www.digitalrights.ie/2008/01/19/dri-condemns-backdoor-implement...

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