Press release
Minister McEntee obtains High Court order requiring the retention of data for State security
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Published on
Last updated on
The Minister for Justice Helen McEntee has obtained a High Court order requiring telecommunications service providers to retain certain data - including user, traffic and location data - for a period of 12 months for the purpose of safeguarding the security of the State.
The Communications (Retention of Data) (Amendment) Act 2022 came into operation yesterday, on 26 June 2023.
It represents a major reform of the State’s legal framework governing the retention of, and access to telecommunications data - the Communications (Retention of Data) Act 2011.
Under section 3A of the new framework the general and indiscriminate retention of data is permissible only to safeguard the security of the State, and where an order of a designated judge of the High Court has been made.
Where the Minister for Justice is satisfied, that there exists a serious and genuine, present or foreseeable threat to the security of the State the Minister may make an application to the High Court.
Yesterday, Minister McEntee obtained an order of the High Court pursuant to section 3A requiring service providers to retain certain data (including user, traffic and location data – referred to as “Schedule 2 data”) for a period of 12 months for the purpose of safeguarding the security of the State.
As is required, Minister McEntee, prior to making the application, assessed the threat to the security of the State and had regard to the necessity and proportionality of the retention of Schedule 2 data taking into account the impact of such retention on the fundamental rights of individuals. The Minister also consulted with the Garda Commissioner prior to making the application.
The application, as required, by section 3A(3), was made on an ex parte basis and was heard in camera.
Section 3A(4) provides that the designated judge may make such an order “only if satisfied that the making of such an order is necessary for, and proportionate to, the purposes for which the application was made”.
Minister McEntee said:
“I made an application for an order having assessed the threat to the security of the State and having satisfied myself that there exists a serious and genuine, present or foreseeable threat to the security of the State and that such threat is likely to continue for at least the next 12 months.
“In doing so I had regard to the necessity and proportionality of the retention of the data concerned and took account of the impact on the fundamental rights of individuals as required.
“The 2022 Act was developed in light of important European Court of Justice rulings in this area and the provisions under which I applied for this order reflects the case law of that Court.”
Access to retained data is subject to strict safeguards provided for under the 2011 Act (as amended) including the new requirement for judicial authorisation.
The Minister also signed the Communications (Retention of Data) (Data Security) Regulations 2023 on 26 June.
They are operative from that date. The purpose of those Regulations is to prescribe the period of time after which telecommunications service providers are obliged to destroy any data retained or preserved under the 2011 Act (as amended).
The Regulations provide that any data retained must be destroyed within a period of 1 month after the legal retention period has expired, unless it has been accessed on a ground permitted under the Act.
The section 3A order will be publicised as required by section 3A(6) of the 2011 Act as amended.
Section 3A(6) provides that where a relevant judge makes an order the Minister shall, without delay arrange for: