I’ve discussed this previously here and here. The Seanad Debate on Thursday touched on some of the issues I mentioned regarding the Criminal Justice (Mutual Assistance) Bill. The core portion of the debate from a Digital Rights point of view comes after the 12 o’clock mark.(About half way down that page)
Maurice Cummins (FG) and Joanna Tuffy (Lab) put down a series of amendments to the bill to address the concern that some of the requests from foreign jurisdictions would not be subject to the same level of judicial oversight that applies to domestic phone taps requests. I’d say that even that degree of supervision is insufficient.
Rejecting the amendments, Minister McDowell responded;
If, for example, an Irish judge were to perform in regard to a foreign request for an intercept the same function I carry out in a domestic context, he or she would exercise juridical supervisory control over decisions made by foreign courts or foreign prosecuting magistrates.
Tentatively, I’d suggest that the Minister has rejected something that wasn’t called for. The Opposition Senators, I think, asked that the current nominated judge be empowered to oversee a specific class of requests on the same terms that he oversees the domestic ones. Unless my reading of the debate is faulty (and I concede it might be) they didn’t ask that he take on the role of the Minister for Justice in authorising phone taps. Merely that his role of examining all the requests for phone taps after the fact, to satisfy himself that the act has been complied with, be extended to cover requests from abroad as well.
That role has been interpreted by the judge as going no further than placing a one line report before the Houses of the Oireachtas once a year, let us not forget. A report, incidentally, which is so obscure that Sen. Cummins pointed out “I have not been able to find a record of any of these reports being laid before the Houses of the Oireachtas.???
The Minister’s summing up, therefore, seems slightly disingenuous.
I do not want to be in breach of our obligation and I do not wish to do something worthless because asking an Irish judge to work out whether an Austrian prosecutor was justified could be a wholly fruitless activity.
He seems to have accepted that Irish authorities can have no method of overseeing or reviewing the legitimacy of the phone taps they would be implementing. However, the Minister still has the power to deny an external member state use of the information gathered in Ireland after he is retrospectivly informed of its collection. Unless this decision is also reviewable by the nominated judge, this is a considerable hole in the legislation. Particularly as without any such powers of review or oversight, as the Minister acknowledges, the bill could act as a loophole in our domestic legislation.
If one could get around the legislation by asking a foreign person to make an application for which there was no oversight at the time or in retrospect, there could be a danger.
In addition, we could be leaving the state open to being used to circumvent the protections of citizen’s rights in other jurisdictions.
The judicial oversight of all phone tap authorisations is the bare minimum we ought to be seeing from this Bill before it becomes an Act.