Technological,
cultural and societal change, resulting in ever increasing challenges facing
law enforcement agencies, has inevitably led to tensions between the
fundamental rights of the individual citizen, including the right to privacy,
and state security. While widely recognised as a necessary evil, secret
surveillance by the state has been described as “a grave threat to
constitutionalism, putting at risk not only individual rights but also the
wider democratic process.”
Recent controversies surrounding secret state surveillance in Ireland,
including the revelation that the Garda Síochána Ombudsman Commission (GSOC)
covertly scrutinised the phone records of two journalists, have resulted in
increased public awareness and political concern around the issue. Surveillance powers are provided for
under three main pieces of legislation in Ireland today: the use of
surveillance and tracking devices under the Criminal justice (Surveillance) Act
2009; the interception of postal packets and telephone conversations (phone
tapping) under the Interception of Postal Packets and Telecommunications
Messages (Regulations) Act 1993; and the use of information that has been
generated by various service providers arising from the use of mobile phones
and landlines under the Communications (Retention of Data) Act 2011. It is the latter Act which has been cited as
providing the legislative authority which enabled An
Garda Síochána Ombudsman Commission to access the phone records of a number of
journalists, details of which emerged in January 2016. Since then it has become
clear that the 2011 Act has been utilised extensively by the state since its
inception with “approximately 62,000 requests for access to data… made over a
five-year period, almost all by the Garda. This means that almost two requests
for access are made every hour, and 34 every day.”
It has also been reported that less than 2% of requests for
disclosure by relevant agencies are turned down by service providers.
The sheer scale of disclosure requests and the propensity of service providers
to accede to these requests underscore the importance of ensuring
the system appropriately balances competing interests, including the right to
privacy and a free press and the public interest in the prevention and
detection of crime, and that the debate is “framed in terms of collective
freedoms and the nature of democratic regimes”. This article will explore the use of
surveillance powers by GSOC in recent years and the existence and level of
judicial oversight of these powers, raising a numbers of concerns surrounding
the use of such powers by GSOC over an extended period of time.