12 October 2017
The Minister for Justice and Equality, Charlie Flanagan, published, on 3 October 2017, the general scheme of the Communications (Retention of Data) Bill 2017 (‘the Draft Bill’), following its approval by the Cabinet. The Draft Bill, which would repeal the Communications (Retention of Data) Act 2011 (‘the Act’) that currently regulates the matter, responds to the evolving jurisprudence of the Court of Justice of the European Union (‘CJEU’) and is intended to give effect to its ruling in the joined cases Tele2 Sverige AB v. Post-och telestyrelsen (C-203/15) and Secretary of State for Home Department v. Tom Watson and Others (C-698/15).
Under the Draft Bill, subscriber data is broadly defined as ‘data which identifies a subscriber,’ to encompass different categories of data. Service providers would be required to retain subscriber data for 12 months from the moment they are first processed. This would harmonise the retention period applicable to fixed network and mobile telephony data on the one hand, and internet access, internet email and internet telephony data on the other, which the Act regulates under two separate regimes.
The Draft Bill details the cases in which prior judicial authorisation would be required and establishes the guarantees surrounding such a disclosure
Further, under the Draft Bill, the retention of targeted categories of traffic and location data could be required, after a ministerial authorisation is obtained, for the purpose of the prevention, detection, investigation or prosecution of serious crime or safeguarding the security of the State. The Draft Bill also regulates the disclosure of such data to the Garda Síochána and other agencies, as well as details the cases in which prior judicial authorisation would be required and establishes the guarantees surrounding such disclosure.
For all types of retained data, the Draft Bill introduces a data localisation requirement and an obligation to retain it in a way allowing, where required, its disclosure without delay. Moreover, it provides for safeguards to be adopted in relation to security and destruction after the retention period expires that are similar to those detailed under the Act. Finally, the content of communications is excluded from the scope of the Draft Bill, as is the case under the current regime.
Flanagan stated that the Joint Committee on Justice and Equality will be asked to consider the Draft Bill.
Cristina Ulessi | Privacy Analyst