Today’s podcast is an interview with TJ McIntyre, Chairman of Digital Rights Ireland, about the Irish Data Retention legislation which was challenged recently by defence lawyers in the Graham Dwyer murder case.

Click on the player above to listen to the show, or download it here: 27:55; 16MB; MP3.

After Graham Dwyer was convicted of the murder of Elaine O’Hara, it emerged that the defence had submitted a motion during the trial to have the some of the evidence suppressed on the grounds that it was obtained under the provisions of legislation which had been enacted to give effect to the EU Data Retention Directive of 2006.

However, that EU directive had been struck down by the European Court of Justice in a ruling in 2014, in a case brought by Digital Rights Ireland. DRI is also in the process of challenging the Act of the Oireachtas which was enacted in 2011 to give effect to the directive.

We’ve covered that European case before on Technology.ie. It’s fair to say that most people find themselves in agreement with the Court, on the grounds that it amounts to extraordinary and unjustified surveillance of the entire population, all the time, with no judicial oversight or adequate protection against abuse.

All that of course is theory, but the Graham Dwyer case provided a vivid example of how communications metadata can be used in practice. Could the success of that conviction be used by some to justify Data Retention? I put the question to TJ McIntyre in this podcast.

A case like this can be seen as a real challenge to the civil liberties advocate, he acknowledges, but it is wrong to simply assume that extraordinary technologies require extraordinary surveillance. He points out that not all of the digital evidence (such as the contents of the recovered telephone handsets and the data found on the computers of Ms O’Hara and Mr Dwyer) was governed by the Data Retention legislation. And he outlines an alternative approach to ‘blanket’ Data Retention, which had already been agreed by EU states in 2001, before the September 11 attacks ushered in a wave of knee-jerk security policies.

That approach is called Data Preservation, and it could be used, for example in the case of a missing person to freeze specific phone records relating to that person, contacts they might have had, or records about a specific time and place related to their last movements. As an investigation proceeded, a warrant could be sought to access the records as required.

Under the current Data Retention regime, Gardaí can access any records, on any person, without even having to explain themselves to a judge. No warrant is required to make a request for metadata from a communications provider – and the result is that tens of thousands of requests are made by the Gardaí each year. This includes some allegedly inappropriate uses, for example the case of a Garda sergeant who was alleged to have used communications metadata to stalk her ex.

It could be argued that mobile metadata is much more invasive than a physical search of someone’s residence – yet no warrant is required.

It was for reasons such as these that the European Court of Justice ruled against Data Retention, says TJ. Yet the Department of Justice has done nothing to address the flaws in the legislation, even though the Court’s Advocate General published his opinion on the matter as early as December 2013.

In this extended podcast interview, TJ explains in detail the problems with Data Retention, the grave threat it poses to civil liberties and why it doesn’t offer the security it promises.

Societies which respect civil liberties are safer and more secure, he points out and it’s a fallacy to suggest that extreme security measures make us safer.

In fact, such measures can backfire, he says, referring the increased cockpit security measures which contributed to the Germanwings disaster last month.

The real terrorists and criminals can easily circumvent data retention provisions, he says, so we are giving up a huge amount of privacy, creating a “juicy target” for hackers, criminals and those who wish to subvert democracy, in return for no real benefit.

Digital Rights Ireland is continuing to challenge the Irish Data Retention Legislation; the case is currently awaiting a hearing in the High Court.

TJ McIntyre will be among the speakers at next week’s Digital Rights Europe conference in Dublin, sponsored by Blacknight. He will speak on the subject of ‘Internet Blocking and Filtering’. Readers of Technology.ie can use the Blacknight discount code ‘DRIBK’ to get 50% off tickets for this event.

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