Statement by Seán Sherlock TD on the publication of the Murray Report

Seán Sherlock TD
03 October 2017

“I welcome at long last today’s publication of the report of Mr Justice John Murray’s Review of the Law on Retention of and Access to Communications Data. It is shocking to recall that this report was received by Government last April.

“The review was initially commissioned to look at issues around access by statutory bodies to the communications data of journalists.

“However, as the published report now makes clear, the importance and scope of these issues stem from the fact that our statutory framework establishes “a form of mass surveillance of virtually the entire population of the State, involving the retention and storage of historic data, other than actual content, pertaining to every electronic communication, in any form, made by anyone and everyone at any time.”

“Electronic communications includes all forms of fixed line and mobile telephone and internet communication, including text messages. The data retained includes the date, time and location of every communication.

“Under the Communications (Retention of Data) Act 2011, our communications service providers are obliged to retain and store this ‘metadata’ relating to everyone’s telephone calls, text messages, e-mails and communications on the Internet. As Judge Murray writes: “In the result, a vast amount of private information pertaining to the personal communications of virtually everyone in the State is now retained without the consent of those affected in databases maintained by each private Service Provider in fulfilment of its statutory obligations, in particular those created by the 2011 Act.”

“This is a vast store of private information touching every aspect of an individual’s private and professional communications profile.

“It is clear in the circumstances outlined by the judge that an arrangement that is effectively universal and indiscriminate in its application and scope will of course capture journalists ‘by the way’, but raises far broader questions that must be of concern to every citizen.

“The most important fact is that our 2011 Act was passed to give effect to an EU Directive (2006/24) which had obliged Member States to ensure the retention of communications data.

“But that Directive was struck down as invalid by the European Court of Justice in 2014, because it failed provide sufficient protection for the fundamental rights of citizens as guaranteed by the European Charter of Fundamental Rights.

“What is more a second ECJ case of the 21st December 2016 has held that no system of automatic and wholly indiscriminate retention of private communications data could be reconciled with European law.

“The court also held that access to retained private data is only permissible where strictly necessary for one of a list of stated reasons, and only when accompanied by robust safeguards protecting fundamental rights.

“Judge Murray firmly concludes that the ECJ “effectively sweeps the ground from under wholly indiscriminate mass surveillance schemes of the kind established by the Communications (Retention of Data) Act 2011”.

“A substantial legislative overhaul is clearly overdue.

“I and my colleagues will carefully examine Minister Charlie Flanagan’s draft Bill, to see if it contains the robust safeguards which EU law now so clearly requires.

“We are indebted to Judge Murray for his clear and unequivocal advice. We must now test whether the Government has accepted that advice and lives up to it.”

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