The Minister for Justice Helen McEntee has signed an order that brings into operation some provisions of new legislation setting out how communications data can be retained. The new law was enacted to provide legal certainty after rulings in this area from the Court of Justice of the European Union.
Earlier this month Helen McEntee signed a commencement order bringing into operation provisions of the Communications (Retention of Data) (Amendment) Act 2022 from 26 June 2023.
The main focus of the new Amendment is on how long data is being retained.
The 2022 Act provides that general and indiscriminate retention of communications traffic and location data is permissible on national security grounds, where approved by a designated judge. The Act also introduces a system of preservation and production orders to facilitate preservation of, and access to, specified communications data held by service providers for national security purposes and for the investigation of serious crime where permitted by an authorising judge.
A preservation order will act as a “quick freeze” requiring service providers to retain any specified data that they hold at a particular point in time for a period. The new legislation will enable Gardai and judges to order the retention of communications data solely on national security grounds.
The new legislation will institute the following changes:
- The retention of “user data” and “internet source data” for a period of 12 months, for the purpose of combatting crime, safeguarding State security, protecting the life and safety of persons or locating missing persons
- General and indiscriminate retention of communications traffic and location data may only be permitted for national security purposes and will require approval by an authorised judge.
- Preservation Orders and Production Orders may be obtained by an Garda Síochána, the Defence Forces, the Revenue Commissioners or the Competition and Consumer Protection Commission
“The commencement of this Act will bring legal certainty for communications service providers and state agencies on what obligations apply to the retention of communications data which is vital for law enforcement and national security purposes,” Mrs McEntee said.
“An Garda Síochána have a vital role to play in keeping us all safe, in investigating criminals and ensuring justice is done. As I have said before An Garda Síochána and our other agencies must be fully equipped with strong laws and modern technology to do their job.
“We cannot have an analogue police service in a digital age. The commencement of this Act will help in that while also ensuring that people’s rights are not subject to unnecessary or disproportionate interference.”
NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email info@nfg.ie.
