Surveillance
CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009
REVISED
Updated to 6 February 2017
AN ACT TO PROVIDE FOR SURVEILLANCE IN CONNECTION WITH THE INVESTIGATION OF ARRESTABLE OFFENCES, THE PREVENTION OF SUSPECTED ARRESTABLE OFFENCES AND THE SAFEGUARDING OF THE STATE AGAINST SUBVERSIVE AND TERRORIST THREATS, TO AMEND THE GARDA SÍOCHÁNA ACT 2005 AND THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH.
[12 th July, 2009]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Annotations:
Editorial Notes:
E1
Record held or created by the Gardaí under Act excluded from application of Freedom of Information Act 2014 (14.10.2014) by Freedom of Information Act 2014 (30/2014), s. 42(b)(ix), commenced on enactment subject to s. 1(3).
Interpretation.
1.— In this Act—
“Act of 1993” means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;
“arrestable offence” has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997;
“authorisation” means an authorisation for the carrying out of surveillance issued under section 5 or varied or renewed under section 6 ;
F1 [ ‘ chairperson ’ , in relation to the Ombudsman Commission, means the member of the Ombudsman Commission who is appointed or acting as its chairperson under section 65 of the Garda S í och á na Act 2005 ;
‘ designated officer of the Ombudsman Commission ’ means —
(a) an officer of the Ombudsman Commission, or
(b) a person engaged by the Ombudsman Commission under section 74 of the Garda S í och á na Act 2005 ,
who is designated by the Ombudsman Commission under section 73 of that Act for the purpose of performing functions under any provisions of Part 4 of that Act; ]
“document” includes—
( a) any book, record or other written or printed material in any form, and
( b) any recording, including any data or information stored, maintained or preserved electronically or otherwise than in legible form;
“judge” means a judge of the District Court;
“member of the Defence Forces” means a member of the Defence Forces within the meaning of section 1 of the Defence (Amendment) Act 1990, other than a member of the Reserve Defence Force within the meaning of the Defence Act 1954;
“member of the Garda Síochána” means a member of the Garda Síochána within the meaning of section 3 of the Garda Síochána Act 2005, other than a person referred to in paragraph ( b) of that definition;
F1 [ ‘ member of the Ombudsman Commission ’ means a member of the Ombudsman Commission appointed under section 65 of the Garda S í och á na Act 2005 ; ]
“Minister” means the Minister for Justice, Equality and Law Reform;
F1 [ ‘ Ombudsman Commission ’ means the Garda S í och á na Ombudsman Commission; ]
“place” includes—
( a) a dwelling or other building,
( b) a vehicle, whether mechanically propelled or not,
( c) a vessel, whether sea-going or not,
( d) an aircraft, whether capable of operation or not, and
( e) a hovercraft;
“relevant Minister” means—
F2 [ (a) the Minister —
(i) in relation to approvals granted by a superior officer of, and documents and information in the custody of, the Garda S í och á na, and
(ii) in relation to approvals granted by a superior officer of, and documents and information in the custody of, the Ombudsman Commission, ]
( b) the Minister for Defence, in relation to approvals granted by a superior officer of, and documents and information in the custody of, the Defence Forces, and
( c) the Minister for Finance, in relation to approvals granted by a superior officer of, and documents and information in the custody of, the Revenue Commissioners;
“revenue offence” means an offence under any of the following provisions that is an arrestable offence:
( a) section 186 of the Customs Consolidation Act 1876;
( b) section 1078 of the Taxes Consolidation Act 1997;
( c) section 102 of the Finance Act 1999;
( d) section 119 of the Finance Act 2001;
( e) section 79 (inserted by section 62 of the Finance Act 2005) of the Finance Act 2003;
( f) section 78 of the Finance Act 2005;
“superior officer” means—
( a) in the case of the Garda Síochána, a member of the Garda Síochána not below the rank of superintendent;
F1 [ (aa) in the case of the Ombudsman Commission, a member of the Ombudsman Commission other than its chairperson; ]
( b) in the case of the Defence Forces, a member of the Defence Forces not below the rank of colonel; and
( c) in the case of the Revenue Commissioners, an officer of the Revenue Commissioners not below the rank of principal officer;
“surveillance” means—
( a) monitoring, observing, listening to or making a recording of a particular person or group of persons or their movements, activities and communications, or
( b) monitoring or making a recording of places or things,
by or with the assistance of surveillance devices;
“surveillance device” means an apparatus designed or adapted for use in surveillance, but does not include—
( a) an apparatus designed to enhance visual acuity or night vision, to the extent to which it is not used to make a recording of any person who, or any place or thing that, is being monitored or observed,
( b) a CCTV within the meaning of section 38 of the Garda Síochána Act 2005, or
( c) a camera, to the extent to which it is used to take photographs of any person who, or any thing that, is in a place to which the public have access;
“tracking device” means a surveillance device that is used only for the purpose of providing information regarding the location of a person, vehicle or thing;
“written record of approval” means a written record of approval prepared by a superior officer under section 7 (6) or 8 (6) .
Annotations:
Amendments:
F1
Inserted (27.04.2015) by Garda S ochána (Amendment) Act 2015 (3/2015), s. 13(a)(ii), (iii), S.I. No. 150 of 2015.
F2
Substituted (27.04.2015) by Garda S ochána (Amendment) Act 2015 (3/2015), s. 13(a)(i), S.I. No. 150 of 2015.
Application of Act.
2.— (1) This Act applies to surveillance carried out by members of the Garda Síochána, F3 [ designated officers of the Ombudsman Commission, ] members of the Defence Forces and officers of the Revenue Commissioners.
(2) Nothing in this Act shall render unlawful any activity that would otherwise be lawful.
(3) An authorisation or approval under this Act may not be issued or granted in respect of an activity that would constitute an interception within the meaning of the Act of 1993.
(4) For the avoidance of doubt, it is hereby declared that this Act does not apply to the following:
( a) the use of a closed circuit television system in a Garda Síochána station;
( b) the recording by electronic or other similar means under section 27 of the Criminal Justice Act 1984 of the questioning of a person by members of the Garda Síochána F3 [ or designated officers of the Ombudsman Commission ] at Garda Síochána stations or elsewhere in connection with the investigation of offences;
( c) the recording by electronic or other similar means of any evidence given, or statement made, by a person for the purposes of any court proceedings.
Annotations:
Amendments:
F3
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(b), S.I. No. 150 of 2015.
Surveillance.
3.— A member of the Garda Síochána, F4 [ a designated officer of the Ombudsman Commission, ] a member of the Defence Forces or an officer of the Revenue Commissioners shall carry out surveillance only in accordance with a valid authorisation or an approval granted in accordance with section 7 or 8 .
Annotations:
Amendments:
F4
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(c), S.I. No. 150 of 2015.
Application for authorisation.
4.— (1) A superior officer of the Garda Síochána may apply to a judge for an authorisation where he or she has reasonable grounds for believing that—
( a) as part of an operation or investigation being conducted by the Garda Síochána concerning an arrestable offence, the surveillance being sought to be authorised is necessary for the purposes of obtaining information as to whether the offence has been committed or as to the circumstances relating to the commission of the offence, or obtaining evidence for the purposes of proceedings in relation to the offence,
( b) the surveillance being sought to be authorised is necessary for the purpose of preventing the commission of arrestable offences, or
( c) the surveillance being sought to be authorised is necessary for the purpose of maintaining the security of the State.
F5 [ (1A) A superior officer of the Ombudsman Commission may apply to a judge for an authorisation where he or she has reasonable grounds for believing that as part of an investigation being conducted by the Ombudsman Commission concerning an arrestable offence, the surveillance being sought to be authorised is necessary for the purposes of obtaining information as to whether the offence has been committed or as to the circumstances relating to the commission of the offence, or obtaining evidence for the purposes of proceedings in relation to the offence. ]
(2) A superior officer of the Defence Forces may apply to a judge for an authorisation where he or she has reasonable grounds for believing that the surveillance being sought to be authorised is necessary for the purpose of maintaining the security of the State.
(3) A superior officer of the Revenue Commissioners may apply to a judge for an authorisation where he or she has reasonable grounds for believing that—
( a) as part of an operation or investigation being conducted by the Revenue Commissioners concerning a revenue offence, the surveillance being sought to be authorised is necessary for the purpose of obtaining information as to whether the offence has been committed or as to the circumstances relating to the commission of the offence, or obtaining evidence for the purpose of proceedings in relation to the offence, or
( b) the surveillance being sought to be authorised is necessary for the purpose of preventing the commission of revenue offences.
(4) In a case in which surveillance carried out under section 7 is sought under subsection (10) of that section to be continued by application under this section, the information on oath supporting the application shall include a copy of the written record of approval concerned, a summary of the results of the surveillance carried out and the reasons why continued surveillance is required.
(5) A superior officer who makes an application under F6 [ subsection (1) , (1A) , (2) , (3) or (4) ] shall also have reasonable grounds for believing that the surveillance being sought to be authorised is—
( a) the least intrusive means available, having regard to its objectives and other relevant considerations,
( b) proportionate to its objectives, having regard to all the circumstances including its likely impact on the rights of any person, and
( c) of a duration that is reasonably required to achieve its objectives.
Annotations:
Amendments:
F5
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(d)(i), S.I. No. 150 of 2015.
F6
Substituted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(d)(ii), S.I. No. 150 of 2015.
Authorisation.
5.— (1) An application under section 4 for an authorisation and under section 6 for a variation or renewal of an authorisation—
(a) shall be made ex parte and shall be heard otherwise than in public, and
( b) may be made to a judge assigned to any district court district.
(2) Subject to subsection (4) , the judge shall issue such authorisation as he or she considers reasonable, if satisfied by information on oath of the superior officer concerned that—
( a) F7 [ the requirements specified in subsection (1) , (1A) , (2) or (3) , as the case may be, of section 4 ] are fulfilled, and
( b) to do so is justified, having regard to the matters referred to in section 4 (5) and all other relevant circumstances.
(3) An information on oath of a superior officer specifying the grounds for his or her belief that the surveillance is necessary for the purpose of preventing the commission of arrestable offences referred to in section 4 (1) (b), or the commission of revenue offences referred to in section 4 (3) (b), need not specify a particular arrestable offence or a particular revenue offence, as the case may be, in respect of which the authorisation is being sought.
(4) The judge shall not issue an authorisation if he or she is satisfied that the surveillance being sought to be authorised is likely to relate primarily to communications protected by privilege.
(5) An authorisation may impose such conditions in respect of the surveillance authorised as the judge considers appropriate.
(6) An authorisation shall be in writing and shall specify—
( a) particulars of the surveillance device that is authorised to be used,
( b) the person who, or the place or thing that, is to be the subject of the surveillance,
( c) the name of the superior officer to whom it is issued,
( d) the conditions (if any) subject to which the authorisation is issued, and
( e) the date of expiry of the authorisation.
(7) An authorisation may authorise the superior officer named in it, or any member of the Garda Síochána, F8 [ any designated officer of the Ombudsman Commission, ] any member of the Defence Forces or any officer of the Revenue Commissioners designated by that superior officer, accompanied by any other person whom he or she considers necessary, to enter, if necessary by the use of reasonable force, any place for the purposes of initiating or carrying out the authorised surveillance, and withdrawing the authorised surveillance device, without the consent of a person who owns or is in charge of the place.
(8) An authorisation shall expire on the day fixed by the judge that he or she considers reasonable in the circumstances and that is not later than 3 months from the day on which it is issued.
(9) Subject to any conditions imposed by the judge under subsection (5) , an authorisation shall have effect both within the district court district to which the judge is assigned and in any other part of the State.
Annotations:
Amendments:
F7
Substituted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(e)(i), S.I. No. 150 of 2015.
F8
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(e)(ii), S.I. No. 150 of 2015.
Variation or renewal of authorisation.
6.— (1) A judge may, on application in that behalf by the superior officer to whom an authorisation was issued, if satisfied by information on oath of that superior officer justifying the variation or renewal of the authorisation—
( a) vary the authorisation, or
( b) renew the authorisation, on the same or different conditions, for such further period, not exceeding 3 months, as the judge considers appropriate.
(2) An application for a renewal under this section shall be made before the authorisation concerned, or any previous renewal of that authorisation, as the case may be, has expired.
(3) Where an application for a renewal under this section has been made and the authorisation concerned would, but for this subsection, expire during the hearing of the application, it shall be deemed not to expire until the determination of the application.
Approval for surveillance in cases of urgency.
7.— (1) A member of the Garda Síochána, F9 [ a designated officer of the Ombudsman Commission, ] a member of the Defence Forces or an officer of the Revenue Commissioners may carry out surveillance without an authorisation if the surveillance has been approved by a superior officer in accordance with this section.
(2) A member or officer referred to in subsection (1) may apply to a superior officer for the grant of an approval to carry out surveillance if he or she believes on reasonable grounds that F10 [ the requirements of subsection (1) , (1A) , (2) or (3) , as the case may be, of section 4 ] are fulfilled and that the surveillance is justified having regard to the matters referred to in section 4(5) , but that, before an authorisation could be issued—
( a) it is likely that a person would abscond for the purpose of avoiding justice, obstruct the course of justice or commit an arrestable offence or a revenue offence, as the case may be,
( b) information or evidence in relation to the commission of an arrestable offence or a revenue offence, as the case may be, is likely to be destroyed, lost or otherwise become unavailable, or
( c) the security of the State would be likely to be compromised.
(3) A superior officer to whom an application under subsection (2) is made shall approve the carrying out of such surveillance as he or she considers appropriate, having regard to the information in the application, if he or she is satisfied that there are reasonable grounds for believing that an authorisation would be issued under section 5 but that one or more of the conditions of urgency specified in subsection (2) apply.
(4) An approval may be granted subject to conditions, including as to the duration of the surveillance.
(5) An approval under this section permits the member or officer concerned, accompanied by any other person whom he or she considers necessary, to enter, if necessary by the use of reasonable force, any place for the purposes of initiating or carrying out the approved surveillance, and withdrawing the approved surveillance device, without the consent of a person who owns or is in charge of the place.
(6) A superior officer who approves the carrying out of surveillance under this section shall, as soon as practicable and, in any case, not later than 8 hours after the surveillance has been approved, prepare a written record of approval of that surveillance.
(7) A written record of approval shall be in such form as the relevant Minister may prescribe by regulations and shall include—
( a) particulars of the surveillance device that is approved to be used,
( b) the person who, or the place or thing that, is to be the subject of the surveillance,
( c) the name of the member of the Garda Síochána, F9 [ designated officer of the Ombudsman Commission, ] member of the Defence Forces or officer of the Revenue Commissioners to whom the approval is granted,
( d) the conditions (if any) subject to which the approval is granted,
( e) the time at which the approval is granted, and
( f) the duration of the approved surveillance.
(8) The member or officer shall not carry out surveillance under this section for a period of more than 72 hours from the time at which the approval is granted.
(9) The superior officer who approved the carrying out of surveillance may vary that approval, or any condition attached to it, at any time before the expiry of the period of 72 hours.
(10) ( a) If the superior officer who approved the carrying out of surveillance believes on reasonable grounds that surveillance beyond the period of 72 hours is warranted, he or she shall, as soon as possible but in any case before the expiry of that period, make an application under section 4(4) for an authorisation to continue the surveillance.
( b) Where an application under section 4(4) has been made and the period referred to in paragraph (a) would, but for this paragraph, expire during the hearing of the application, it shall be deemed not to expire until the determination of the application.
(11) A superior officer who approves the carrying out of surveillance under this section shall make a report as soon as possible and, in any case, not later than 7 days after the surveillance concerned has been completed, specifying the grounds on which the approval was granted, and including a copy of the written record of approval and a summary of the results of the surveillance.
(12) A report under subsection (11) shall be made to—
( a) in the case of a member of the Garda Síochána, a member of the Garda Síochána of the rank of Assistant Commissioner,
F9 [ ( aa ) in the case of a designated officer of the Ombudsman Commission, the chairperson of the Ombudsman Commission, ]
( b) in the case of an officer of the Defence Forces, a general officer within the meaning of section 2> (as amended by section 2( b) of the Defence (Amendment) Act 1979) of the Defence Act 1954, and
( c) in the case of an officer of the Revenue Commissioners, an officer of the Revenue Commissioners of the rank of Assistant Secretary.
Annotations:
Amendments:
F9
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(f)(i), (iii), (iv), S.I. No. 150 of 2015.
F10
Substituted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(f)(ii), S.I. No. 150 of 2015.
Editorial Notes:
E2
Power pursuant to subs. (7) exercised (6.02.2017) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Garda Síochána Ombudsman Commission) Regulations 2017 (S.I. No. 46 of 2017).
E3
Power pursuant to subs. (7) exercised (17.02.2010) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Defence Forces) Regulations 2010 (S.I. No. 80 of 2010).
E4
Form of written record of approval for purposes of section prescribed (27.07.2009) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Revenue Commissioners) Regulations 2009 (S.I. No. 290 of 2009), reg. 3 and sch.
E5
Form of written record of approval for purposes of section prescribed (20.07.2009) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (An Garda Síochána) Regulations 2009 (S.I. No. 275 of 2009), reg. 3 and sch.
Tracking devices.
8.— (1) Notwithstanding sections 4 to 7 , a member of the Garda Síochána, F11 [ a designated officer of the Ombudsman Commission, ]a member of the Defence Forces or an officer of the Revenue Commissioners may, for a period of not more than 4 months or such shorter period as the Minister may prescribe by regulations, monitor the movements of persons, vehicles or things using a tracking device if that use has been approved by a superior officer in accordance with this section.
(2) A member or officer referred to in subsection (1) may apply to a superior officer for the grant of an approval to use a tracking device if he or she believes on reasonable grounds that—
( a) F12 [ the requirements of subsection (1) , (1A) , (2) or (3) , as the case may be, of section 4 ] are fulfilled and that surveillance is justified having regard to the matters referred to in paragraphs (b) and (c) of section 4(5) , but that the use of a tracking device would be sufficient for obtaining the information or evidence in the circumstances concerned, and
( b) the information or evidence sought could reasonably be obtained by the use of a tracking device for a specified period that is as short as is practicable to allow the information or evidence to be obtained.
(3) A superior officer to whom an application under subsection (2) is made shall approve such use of a tracking device as he or she considers appropriate, having regard to the information in the application, if he or she is satisfied that there are reasonable grounds for believing that an authorisation would be issued under section 5 and that the conditions specified in subsection (2) apply.
(4) An approval may be granted subject to conditions, including as to the duration of the use of the tracking device.
(5) An approval under this section permits the member or officer concerned, accompanied by any other person whom he or she considers necessary, to place the tracking device and remove it at the end of its use, without the consent of a person who owns or is in charge of the vehicle or thing on which it is placed.
(6) A superior officer who approves the use of a tracking device under this section shall, as soon as practicable and, in any case, not later than 8 hours after the use has been approved, prepare a written record of approval of the use of the tracking device.
(7) A written record of approval shall be in such form as the relevant Minister may prescribe by regulations and shall include—
( a) particulars of the tracking device that is approved to be used,
( b) the person who, or the vehicle or thing that, is to be monitored,
( c) the name of the member of the Garda Síochána, F11 [ designated officer of the Ombudsman Commission, ] member of the Defence Forces or officer of the Revenue Commissioners to whom the approval is granted,
( d) the conditions (if any) subject to which the approval is granted,
( e) the time at which the approval is granted, and
( f) the duration of the use approved.
(8) Without prejudice to the maximum period for which an approval granted under this section may have effect, the superior officer who approves the use of a tracking device under this section may vary that approval, or any condition attached to it, at any time before the expiry of that approval.
(9) A superior officer who approves the use of a tracking device under this section shall make a report as soon as possible and, in any case, not later than 7 days after its use has ended, specifying the grounds on which the approval was granted, and including a copy of the written record of approval and a summary of the results of the monitoring.
(10) A report under subsection (9) shall be made to—
( a) in the case of a member of the Garda Síochána, a member of the Garda Síochána of the rank of Assistant Commissioner,
F11 [ ( aa ) in the case of a designated officer of the Ombudsman Commission, the chairperson of the Ombudsman Commission, ]
( b) in the case of an officer of the Defence Forces, a general officer within the meaning of section 2 (as amended by section 2( b) of the Defence (Amendment) Act 1979) of the Defence Act 1954, and
( c) in the case of an officer of the Revenue Commissioners, an officer of the Revenue Commissioners of the rank of Assistant Secretary.
(11) The Minister may, in the interests of the protection of the privacy and other rights of persons, the security of the State, and the aims of preventing the commission of, and detecting, arrestable offences, make regulations prescribing a period of less than 4 months as the maximum period for which approvals granted under this section may have effect, and such regulations may prescribe different periods in respect of different purposes or circumstances.
Annotations:
Amendments:
F11
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(g)(i), (iii), (iv), S.I. No. 150 of 2015.
F12
Substituted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(g)(ii), S.I. No. 150 of 2015.
Editorial Notes:
E6
Power pursuant to subs. (7) exercised (6.02.2017) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Garda Síochána Ombudsman Commission) Regulations 2017 (S.I. No. 46 of 2017).
E7
Power pursuant to subs. (7) exercised (17.02.2010) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Defence Forces) Regulations 2010 (S.I. No. 80 of 2010).
E8
Form of written record of approval for purposes of section prescribed (27.07.2009) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Revenue Commissioners) Regulations 2009 (S.I. No. 290 of 2009), reg. 4 and sch.
E9
Form of written record of approval for purposes of section prescribed (20.07.2009) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (An Garda S ochána) Regulations 2009 (S.I. No. 275 of 2009), reg. 4 and sch.
Retention of materials relating to applications and reports.
9.— (1) An application for an authorisation under section 4 or 6 , and any documents supporting the application, shall be retained until—
( a) the day that is 3 years after the day on which the authorisation concerned ceases to be in force, or
( b) the day on which they are no longer required for any prosecution or appeal to which they are relevant,
whichever is later.
(2) A written record of approval prepared under section 7(6) or 8(6), and a report made under section 7(11) or 8(9) , shall be retained until—
( a) the day that is 3 years after the day on which the written record of approval is prepared or the report concerned is made, or
( b) the day on which they are no longer required for any prosecution or appeal to which they are relevant,
whichever is later.
(3) The documents obtained as a result of surveillance carried out or tracking devices used under this Act, other than those referred to in subsections (1) and (2), shall be retained until—
( a) the day that is 3 years after the end of the surveillance or monitoring concerned, or
( b) the day on which they are no longer required for any prosecution or appeal to which they are relevant,
whichever is later.
(4) Subject to subsection (5) , the documents referred to in subsections (1) to (3) shall be destroyed as soon as practicable after they are no longer required to be retained under those subsections.
(5) The relevant Minister may authorise in writing the retention of any of the documents referred to in this section where he or she considers it necessary to do so having regard to—
( a) the interests of the protection of the privacy and other rights of persons,
( b) the security of the State,
( c) the aims of preventing the commission of, and detecting, arrestable offences, and
( d) the interests of justice.
Restriction of disclosure of existence of authorisations and other documents.
10.— (1) The relevant Minister shall ensure that information and documents to which this Act applies are stored securely and that only persons who he or she authorises for that purpose have access to them.
(2) In the interests of the protection of the privacy and other rights of persons, the security of the State, and the aims of preventing the commission of, and detecting, arrestable offences, the relevant Minister may make regulations prescribing—
( a) the persons or categories of persons who are to have access for the purposes of this section to information with respect to the existence of authorisations, approvals granted under sections 7 and 8 and documents referred to in section 9 ,
( b) the procedures and arrangements for the secure storage, and the maintenance of the security, of that information and those documents, and
( c) the number of copies that may be made of those documents and the destruction of those copies as soon as possible after they are no longer required under section 9.
(3) Notwithstanding section 13 , the Minister may make regulations respecting the disclosure or non-disclosure, to the person who was its subject or other persons whose interests are materially affected by it, of the existence of an authorisation or an approval under section 7 or 8 , provided that any disclosure authorised by such regulations is—
( a) consistent with the purposes for which the authorisation or approval concerned was issued or granted,
( b) consistent with the security of the State, the protection of persons’ privacy and other rights and the aims of preventing and detecting the commission of arrestable offences, and
( c) unlikely to hinder the investigation in the future of such offences.
(4) Any regulation made under subsection (3) may—
( a) require consultation by the Minister, in any particular case of disclosure, with such classes of persons as may be prescribed,
( b) prescribe categories of persons (other than the subjects of the authorisations or approvals) whose interests are materially affected by authorisations or approvals, to whom disclosure is to be made, and
( c) permit the imposition of terms and conditions limiting the extent or detail of disclosure as necessary, having regard to the matters referred to in subsection (3).
Complaints procedure.
11.— (1) A person who believes that he or she might be the subject of an authorisation or an approval under section 7 or 8 may apply to the Referee for an investigation into the matter.
(2) A superior officer who makes a report under section 7 (11) or 8 (9), or F13 [ a person who ] receives a report under section 7 (12) or 8 (10) , may apply to the Referee for an investigation into a matter if he or she believes that such an investigation would be in the interests of justice.
(3) If an application is made under this section (other than one that the Referee considers to be frivolous or vexatious), the Referee shall investigate—
( a) whether an authorisation was issued or an approval was granted as alleged in the application, and
( b) if so, whether there has been a relevant contravention.
(4) If, after investigating the matter, the Referee concludes that there has been a relevant contravention, the Referee shall—
( a) notify the applicant, and any other person whose interests are materially affected by the relevant contravention, in writing of that conclusion, and
( b) make a report of his or her findings to the Taoiseach.
(5) In the circumstances referred to in subsection (4) , the Referee may also, if he or she is of opinion that the relevant contravention was material and that to do so would be justified in the circumstances, by order do one or more of the following things:
( a) direct—
(i) the quashing of the authorisation or the reversal of the approval, and
(ii) the destruction of the written record of approval concerned, the report under section 7 (11) or 8 (9) concerned, and any information or documents obtained as a result of the authorisation or approval;
( b) make a recommendation for the payment of such sum, not exceeding €5,000, specified in the order by way of compensation to the person who was the subject of the authorisation or approval;
( c) report the matter and any recommendation under paragraph (b) to—
(i) the F14 [ the Ombudsman Commission ], in the case of a contravention by the Garda Síochána,
F13 [ (ia) the Minister, in the case of a contravention by the Ombudsman Commission, ]
(ii) the Minister for Defence, in the case of a contravention by the Defence Forces,
(iii) the Minister for Finance, in the case of a contravention by the Revenue Commissioners;
( d) report the matter and any recommendation under paragraph (b) to the judge designated under section 12 .
(6) If the Referee is of opinion that, in all the circumstances, it would not be in the public interest to—
( a) notify, under subsection (4) (a) , the applicant or the other person, if any, of a conclusion that there has been a relevant contravention,
( b) direct the quashing, reversal or destruction under subsection (5) (a) , or
( c) make a recommendation for the payment of a sum by way of compensation under subsection (5) (b) ,
he or she shall decline to do so.
(7) If, after investigating the matter, the Referee concludes that there has not been a relevant contravention, the Referee shall give notice in writing to the applicant stating only that there has been no such contravention.
(8) A decision of the Referee under this section is final.
(9) A relevant contravention that is not material does not of itself constitute a cause of action at the suit of a person who was the subject of the authorisation or approval concerned.
(10) A person in charge of a Garda Síochána station within the meaning of section 99(10) of the Garda Síochána Act 2005, a place under the control of F15 [ the Ombudsman Commission, ] the Defence Forces or the Revenue Commissioners or any other place in which documents relevant to an investigation under this section are kept shall ensure that the Referee has access to those places, and to the authorisations, written records of approval, reports and other relevant documents that the Referee may request.
(11) The Referee—
( a) may, on his or her own initiative, and
( b) shall, where a case has been referred to him or her by the designated judge under section 12 (8) ,
investigate whether there has been a relevant contravention and this section (other than subsection (7) ) shall apply to such an investigation as if the references to “the applicant” in subsections (4) and (6) were to “the person who was the subject of the authorisation or approval”.
(12) In this section—
“Referee” means the holder of the office of Complaints Referee under the Act of 1993;
“relevant contravention” means a contravention of a provision of sections 4 to 8 .
Annotations:
Amendments:
F13
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(h)(ii)(II), (iii), S.I. No. 150 of 2015.
F14
Substituted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(g)(ii)(I), S.I. No. 150 of 2015.
F15
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(h)(i), (ii)(II), (iii), S.I. No. 150 of 2015.
Review of operation of this Act by designated judge.
12.— (1) After consulting with the Minister, the President of the High Court shall invite a judge of the High Court to undertake (while serving as such a judge) the duties specified in this section and, if the invitation is accepted, the Government shall designate the judge for the purposes of performing those functions.
(2) The designated judge holds office in accordance with the terms of the designation.
(3) The functions of the designated judge are to—
( a) keep under review the operation of sections 4 to 8 , and
( b) report to the Taoiseach from time to time and at least once every 12 months concerning any matters relating to the operation of those sections that the designated judge considers should be reported.
(4) For the purpose of performing his or her functions the designated judge may investigate any case in which an authorisation is issued under section 5 or renewed or varied under section 6 or an approval is granted under section 7 or 8 .
(5) A person in charge of a Garda Síochána station within the meaning of section 99(10) of the Garda Síochána Act 2005, a place under the control of F16 [ the Ombudsman Commission, ] the Defence Forces or the Revenue Commissioners or any other place in which documents relevant to the performance of the functions of the designated judge are kept shall ensure that the designated judge has access to those places, and to the authorisations, written records of approval, reports and other relevant documents that the designated judge may request.
(6) The Taoiseach shall ensure that a copy of a report under subsection (3)(b) is laid before each House of the Oireachtas not later than 6 months after it is made, together with a statement of whether any matter has been excluded under subsection (7).
(7) If the Taoiseach considers, after consultation with the designated judge, that the publication of any matter in a report, copies of which are to be laid before the Houses under subsection (6), would be prejudicial to the security of the State, the Taoiseach may exclude that matter from those copies.
(8) Where the designated judge investigates a case under subsection (4) and is of the opinion that it is in the interests of justice to do so, he or she may refer that case to the Referee for an investigation under section 11 (11) .
Annotations:
Amendments:
F16
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(i), S.I. No. 150 of 2015.
Confidentiality of information.
13.— (1) A person shall not disclose, inside or outside the State, any information in connection with the operation of this Act in relation to surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 , including any information or documents obtained as a result of such surveillance, or reveal the existence of an application for the issue of an authorisation, the variation or renewal of an authorisation under section 6 or the grant of an approval under section 7 or 8 , unless the disclosure is to an authorised person and is—
( a) for the purposes of the prevention, investigation or detection of crime,
( b) for the prosecution of offences,
( c) in the interests of the security of the State, or
( d) required under any other enactment.
(2) A relevant person who contravenes subsection (1) shall be guilty of an offence and shall be liable—
( a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or
( b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.
(3) A person other than a relevant person who contravenes subsection (1) shall be guilty of an offence and shall be liable—
( a) on summary conviction, to a fine not exceeding €1,000 or imprisonment for a term not exceeding 6 months or both, or
( b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 2 years or both.
(4) In this section—
“authorised person” means—
( a) a person referred to in section 62(4)( a) of the Garda Síochána Act 2005,
( b) the Minister for Defence,
( c) the Minister for Finance, and
( d) a person the disclosure to whom is—
(i) authorised by the Commissioner of the Garda Síochána, F17 [ the chairperson of the Ombudsman Commission, ] the Chief of Staff of the Defence Forces or a Revenue Commissioner, or
(ii) otherwise authorised by law;
“relevant person” means a person who is or was—
( a) a member of the Garda Síochána, F17 [ a designated officer of the Ombudsman Commission, ] a member of the Defence Forces or an officer of the Revenue Commissioners,
( b) a reserve member of the Garda Síochána within the meaning of the Garda Síochána Act 2005,
F17 [ ( ba ) an officer of the Ombudsman Commission other than a designated officer of the Ombudsman Commission, ]
( c) a member of the Reserve Defence Force within the meaning of the Defence Act 1954,
( d) a member of the civilian staff of the Garda Síochána or of the Defence Forces, or
( e) engaged under a contract or other arrangement to work with or for the Garda Síochána, F17 [ the Ombudsman Commission, ] the Defence Forces or the Revenue Commissioners.
Annotations:
Amendments:
F17
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(j), S.I. No. 150 of 2015.
Admissibility of evidence.
14.— (1) Evidence obtained as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 may be admitted as evidence in criminal proceedings.
(2) Nothing in this Act is to be construed as prejudicing the admissibility of information or material obtained otherwise than as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 .
(3) ( a) Information or documents obtained as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 may be admitted as evidence in criminal proceedings notwithstanding any error or omission on the face of the authorisation or written record of approval concerned, if the court, having regard in particular to the matters specified in paragraph (b) , decides that—
(i) the error or omission concerned was inadvertent, and
(ii) the information or document ought to be admitted in the interests of justice.
( b) The matters referred to in paragraph (a) are the following:
(i) whether the error or omission concerned was serious or merely technical in nature;
(ii) the nature of any right infringed by the obtaining of the information or document concerned;
(iii) whether there were circumstances of urgency;
(iv) the possible prejudicial effect of the information or document concerned;
(v) the probative value of the information or document concerned.
(4) ( a) Information or documents obtained as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 may be admitted as evidence in criminal proceedings notwithstanding any failure by any member of the Garda Síochána, F18 [ designated officer of the Ombudsman Commission, ] member of the Defence Forces or officer of the Revenue Commissioners concerned to comply with a requirement of the authorisation or approval concerned, if the court, having regard in particular to the matters specified in paragraph (b) , decides that—
(i) the member or officer concerned acted in good faith and that the failure was inadvertent, and
(ii) the information or document ought to be admitted in the interests of justice.
( b) The matters referred to in paragraph (a) are the following:
(i) whether the failure concerned was serious or merely technical in nature;
(ii) the nature of any right infringed by the obtaining of the information or document concerned;
(iii) whether there were circumstances of urgency;
(iv) the possible prejudicial effect of the information or document concerned;
(v) the probative value of the information or document concerned.
(5) It shall be presumed, until the contrary is shown, that a surveillance device or tracking device used by a member of the Garda Síochána, F18 [ a designated officer of the Ombudsman Commission, ] a member of the Defence Forces or an officer of the Revenue Commissioners for the purposes referred to in this Act is a device capable of producing accurate information or material without the necessity of proving that the surveillance device or tracking device was in good working order.
Annotations:
Amendments:
F18
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(k), S.I. No. 150 of 2015.
Disclosure of information.
15.— (1) Unless authorised by the court, the existence or non-existence of the following shall not be disclosed by way of discovery or otherwise in the course of any proceedings:
( a) an application under section 4 or 6 ;
( b) an authorisation;
( c) an approval granted under section 7 or 8 ;
( d) surveillance carried out under an authorisation or under an approval granted under section 7 ;
( e) the use of a tracking device under section 8 ; and
( f) documentary or other information or evidence in relation to—
(i) the decision to apply for an authorisation or an approval under section 7 or 8 , or
(ii) anything referred to in paragraphs (a) to (e) .
(2) The court shall not authorise the disclosure if it is satisfied that to do so is likely to create a material risk to—
( a) the security of the State,
( b) the ability of the State to protect persons from terrorist activity, terrorist-linked activity, organised crime and other serious crime,
( c) the maintenance of the integrity, effectiveness and security of the operations of the Garda Síochána, F19 [ the Ombudsman Commission, ] the Defence Forces or the Revenue Commissioners, or
( d) the ability of the State to protect witnesses, including their identities.
(3) Notwithstanding subsection (2) , the court may authorise the disclosure, subject to such conditions as it considers justified, if in all of the circumstances it is in the interests of justice to do so.
(4) In this section—
“organised crime” has the meaning it has in Part 7 of the Criminal Justice Act 2006;
“terrorist activity” and “terrorist-linked activity” have the meanings they have in section 4 of, and Schedule 2 to, the Criminal Justice (Terrorist Offences) Act 2005.
Annotations:
Amendments:
F19
Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(l), S.I. No. 150 of 2015.
Regulations.
16.— (1) The Minister, the Minister for Defence and the Minister for Finance may make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed by him or her.
(2) Regulations made under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister of the Government making them to be necessary or expedient for the purposes of the regulations.
(3) Every regulation under this section shall be laid before each House of the Oireachtas as soon as may be after it has been made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
Annotations:
Editorial Notes:
E10
Power pursuant to section exercised (6.02.2017) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Garda Síochána Ombudsman Commission) Regulations 2017 (S.I. No. 46 of 2017).
E11
Power pursuant to section exercised (17.02.2010) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Defence Forces) Regulations 2010 (S.I. No. 80 of 2010).
E12
Power pursuant to subs. (1) exercised (27.07.2009) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Revenue Commissioners) Regulations 2009 (S.I. No. 290 of 2009).
E13
Power pursuant to subs. (1) exercised (20.07.2009) by Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (An Garda Síochána) Regulations 2009 (S.I. No. 275 of 2009).
COMMUNICATIONS (RETENTION OF DATA) ACT 2011
REVISED
Updated to 1 August 2023
AN ACT TO GIVE EFFECT TO DIRECTIVE NO. 2006/24/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 15 MARCH 2006 1 ON THE RETENTION OF DATA GENERATED OR PROCESSED IN CONNECTION WITH THE PROVISION OF PUBLICLY AVAILABLE ELECTRONIC COMMUNICATIONS SERVICES OR OF PUBLIC COMMUNICATIONS NETWORKS AND AMENDING DIRECTIVE 2002/58/EC 2, TO PROVIDE FOR THE RETENTION OF AND ACCESS TO CERTAIN DATA FOR THE PURPOSES OF THE PREVENTION OF SERIOUS OFFENCES, THE SAFEGUARDING OF THE SECURITY OF THE STATE AND THE SAVING OF HUMAN LIFE, TO REPEAL PART 7 OF THE CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005, TO AMEND THE INTERCEPTION OF POSTAL PACKETS AND TELECOMMUNICATIONS MESSAGES (REGULATION) ACT 1993 AND TO PROVIDE FOR RELATED MATTERS.
[26th January, 2011]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Annotations
Modifications (not altering text):
C1
Records under Act excluded from application of Freedom of Information Act (30/2014) (14.10.2014) by Freedom of Information Act 2014 (30/2014), s. 42(b)(x), commenced as per s. 1(2).
Restriction of Act
42.—This Act does not apply to— …
(b) a record held or created by the Garda Síochána that relates to any of the following: …
(x) the Communications (Retention of Data) Act 2011 ,
…
Section 1
Interpretation.
1.— (1) In this Act—
“Act of 1993” means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;
F1[“authorising judge” means a judge of the District Court designated under section 12J(1);]
“cell ID” means the identity of the cell from which a mobile telephony call originated or in which it terminated;
F2[“competition offence” means an offence under section 6 of the Competition Act 2002, that is an offence involving an agreement, decision or concerted practice to which subsection (2) of that section applies;]
“data” means traffic data or location data and the related data necessary to identify the subscriber or user;
“designated judge” means the judge of the High Court designated by the President of the High Court under section 8 of the Act of 1993;
F1[“disclosure requirement” means a requirement made of a service provider under section 6, 6F, 7C or 7D;
“electronic communications network” means transmission systems and, where applicable—
(a) switching equipment or routing equipment, and
(b) other resources,including network elements which are not active, which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, and such conveyance includes the use of—
(i) satellite networks,
(ii) fixed terrestrial networks (both circuit-switched and packet-switched, including internet),
(iii) mobile terrestrial networks,
(iv) electricity cable systems to the extent that they are used for the purpose of transmitting signals,
(v) networks used for either or both radio and television broadcasting, and
(vi) cable television networks,
irrespective of the type of information conveyed;
“electronic communications service” means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services, publicly available telephone services and transmission services in networks used for broadcasting, but does not include—
(a) services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, and
(b) information society services within the meaning of Article 1 (inserted by Directive 98/48/EC of 20 July 19981) of Directive 98/34/EC of 22 June 19982 which do not consist wholly or mainly in the conveyance of signals on electronic communications networks;]
F3[…]
“Garda Commissioner” means the Commissioner of the Garda Síochána;
F1[“internet source data” means the following data necessary to trace and identify the source of a communication by internet access, internet email or internet telephony:
(a) the Internet Protocol (IP) address, whether dynamic or static, allocated by the service provider to the source of a communication;
(b) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address was allocated at the time of the communication;]
“Minister” means the Minister for Justice, Equality and Law Reform;
“processing” has the same meaning as in the Data Protection Act 1988;
“Referee” means the holder of the office of Complaints Referee under the Act of 1993;
“revenue offence” means an offence under any of the following provisions that is a serious offence:
(a) section 186 of the Customs Consolidation Act 1876;
(b) section 1078 of the Taxes Consolidation Act 1997;
(c) section 102 of the Finance Act 1999;
(d) section 119 of the Finance Act 2001;
(e) section 79 (inserted by section 62 of the Finance Act 2005) of the Finance Act 2003;
(f) section 78 of the Finance Act 2005;
F1[“Schedule 2 data” means the categories of data specified in Parts 1 and 2 of Schedule 2;]
“serious offence” means an offence punishable by imprisonment for a term of 5 years or more, and an offence listed in Schedule 1 is deemed to be a serious offence;
“service provider” means a person who is engaged in the provision of a publicly available electronic communications service or a public communications network by means of fixed line or mobile telephones or the Internet;
F1[“superior officer” means—
(a) in relation to a member of the Garda Síochána, a member of the Garda Síochána not below the rank of superintendent;
(b) in relation to a member of the Permanent Defence Force, a member of the Permanent Defence Force not below the rank of lieutenant colonel;
(c) in relation to an officer of the Revenue Commissioners, an officer of the Revenue Commissioners not below the rank of principal officer;]
F4[(d) in relation to an officer of the Competition and Consumer Protection F5[Commission], an officer of the Competition and Consumer Protection F5[Commission] not below the rank of principal officer;]
“telephone service” means calls (including voice, voicemail, conference and data calls), supplementary services (including call forwarding and call transfer) and messaging and multimedia services (including short message services, enhanced media services and multi-media services);
“unsuccessful call attempt” means a communication where a telephone call or an Internet telephony call has been successfully connected but not answered or there has been a network management intervention;
F6[“user” means a person who is using an electronic communications service or other means of electronic communication, for private or other purposes—
(a) whether or not that electronic communications service or other means of electronic communication is publicly available, and
(b) whether or not that person has subscribed to the service;]
F1[“user data” means the following types of data and any other types of data set out in technical specification ETSI TS 103 280 “Lawful Interception (LI): dictionary for common parameters” issued by the European Telecommunications Standards Institute that are relevant to these data:
(a) the name of the user;
(b) the address of the user;
(c) where applicable, the following data in respect of the user:
(i) the mobile telephony number;
(ii) the fixed network telephony number;
(iii) the International Mobile Subscriber Identifier (IMSI);
(iv) the International Mobile Equipment Identity (IMEI);
(v) the Internet Protocol (IP) address, whether dynamic or static, allocated by the internet access service to the communication;
(vi) the user ID;
(vii) the date and time of initial activation of an electronic communications service or other means of communication;
(viii) the date and time of the last outgoing mobile telephony or fixed network telephony communication;]
“user ID” means a unique identifier allocated to a person when they subscribe to or register with an Internet access service or Internet communications service.
(2) A word or expression used in this Act and also in Directive 2002/58/EC has the same meaning in this Act as in that Directive.
Annotations
Amendments:
F1
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 2(c), S.I. No. 287 of 2023, art. 3(b).
F2
Inserted (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), s. 89(a), S.I. No. 366 of 2014, in effect as per reg. 2.
F3
Deleted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 2(b), S.I. No. 287 of 2023, art. 3(b).
F4
Inserted (1.08.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 2(c), S.I. No. 390 of 2023.
F5
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(a), S.I. No. 391 of 2023.
F6
Substituted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 2(a), S.I. No. 287 of 2023, art. 3(b).
Modifications (not altering text):
C2
Reference to “processing” construed (25.05.2018) by Data Protection Act 2018 (7/2018), s. 166, S.I. No. 174 of 2018.
Reference to processing in enactment
166. Subject to this Act, a reference in any enactment to processing within the meaning of the Act of 1988 shall be construed as including a reference to processing within the meaning of—
(a) the Data Protection Regulation, and
(b) Part 5.
1 O.J. No. L 217, 05.08.1998, p.18
2 O.J. No. L 204, 21.07.1998, p.37
Section 2
Non-application of Act.
2.— This Act does not apply to the content of communications transmitted by means of fixed network telephony, mobile telephony, Internet access, Internet e-mail or Internet telephony.
Section 3
F7[
Obligation to retain data
3.— (1) A service provider shall retain, in accordance with section 12D, user data for a period of one year, or such period as may be prescribed in accordance with subsection (2), from the date on which the data were first processed by the service provider concerned.
(2) The Minister may, for the purposes of subsection (1), prescribe such period (which may be less than one year, and which shall not exceed two years) as he or she considers necessary for, and proportionate to, the purposes of—
(a) preventing, detecting, investigating or prosecuting offences, including revenue offences and competition offences,
(b) achieving the objectives specified in section 6(1)(b).
(3) The Minister may, in prescribing a period under subsection (2), prescribe different periods for different types of data specified in the definition of “user data” in this Act.]
Annotations
Amendments:
F7
Substituted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 3, S.I. No. 287 of 2023, art. 3(c).
Section 3A
F8[
Obligation to retain Schedule 2 data
3A.— (1) The Minister may, where he or she is satisfied that there exists a serious and genuine, present or foreseeable threat to the security of the State, make, in accordance with this section, an application to a relevant judge for an order under this section.
(2) Before making an application under subsection (1), the Minister shall assess the threat to the security of the State and, in doing so shall have regard to the necessity and proportionality of the retention of Schedule 2 data pursuant to an order under this section, taking into account the impact of such retention on the fundamental rights of individuals.
(3) An application under subsection (1) shall—
(a) be made ex parte,
(b) be upon information on oath specifying the grounds on which the order is sought, which information shall include the assessment under subsection (2) concerned,
(c) specify the period of time for which retention of Schedule 2 data by service providers is, in the view of the Minister, having regard to his or her assessment under subsection (2), required for the purposes of safeguarding the security of the State, and
(d) be heard otherwise than in public.
(4) A relevant judge, as respects an application under subsection (1), may make an order under subsection (5) only if satisfied that the making of such an order is necessary for, and proportionate to, the purposes for which the application was made.
(5) An order under this subsection shall require all service providers to retain Schedule 2 data, or such Schedule 2 data as are specified in the order—
(a) for a period of 12 months from the date on which the data were first processed by the service provider concerned,
(b) in accordance with section 12D, and
(c) subject to such conditions and directions as the relevant judge may specify in the order.
(6) Where a relevant judge makes an order under subsection (5), the Minister shall, without delay arrange for—
(a) the order to be publicised in the national media,
(b) the order to be notified, in so far as practicable, to service providers, and
(c) a notice of the making of the order to be published in Iris Oifigiúil.
(7) A service provider shall comply with an order under subsection (5).
(8) The data to which this section applies include data relating to unsuccessful call attempts that, in the case of data specified in Part 1 of F9[Schedule 2], are stored in the State, or in the case of data specified in Part 2 of F9[Schedule 2], are logged in the State.
(9) An order under this section shall not require a service provider to retain aggregated data, data that have been made anonymous or data relating to unconnected calls.
(10) The President of the High Court shall at the request of the Minister, designate a judge or judges of the High Court to perform the functions of a relevant judge under this section, and a reference in this section to a “relevant judge” shall be construed as a reference to a judge so designated.
(11) In this section, “aggregated data” means data that cannot be related to individual users.]
Annotations
Amendments:
F8
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 4, S.I. No. 287 of 2023, art. 3(c).
F9
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(b), S.I. No. 391 of 2023.
Section 3B
F10[
Obligation to retain internet source data.
3B.— (1) A service provider shall retain, in accordance with section 12D, internet source data for a period of one year, or such period as may be prescribed in accordance with subsection (2), from the date on which the data were first processed by the service provider concerned.
(2) The Minister may, for the purposes of subsection (1), prescribe such period (which may be less than one year, and which shall not exceed two years) as he or she considers necessary for, and proportionate to, the purposes of safeguarding the security of the State or achieving the objectives specified in section 6C(1)(b).]
Annotations
Amendments:
F10
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 4, S.I. No. 287 of 2023, art. 3(c).
Section 4
Data security.
4.— (1) A service provider who F11[retains or preserves] data under F12[section 3(1), 3A(5), 3B(1), 7A(11) or 7B(10)] shall take the following security measures in relation to the retained data:
(a) the data shall be of the same quality and subject to the same security and protection as those data relating to the publicly available electronic communications service or to the public communications network, as the case may be;
(b) the data shall be subject to appropriate technical and organisational measures to protect the data against accidental or unlawful destruction, accidental loss or alteration, or unauthorised or unlawful storage, processing, access or disclosure;
(c) the data shall be subject to appropriate technical and organisational measures to ensure that they can be accessed by authorised personnel only;
F12[(d) the data, except those that have been accessed and preserved, shall be destroyed by the service provider in such manner, and within such period (which shall not exceed 2 years and one month) as may be prescribed.]
(2) The Data Protection Commissioner is hereby designated as the national supervisory authority for the purposes of this Act and Directive No. 2006/24/EC of the European Parliament and of the Council.
Annotations
Amendments:
F11
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(c), S.I. No. 391 of 2023.
F12
Substituted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 10(1)(a), (b), S.I. No. 287 of 2023, art. 3(h).
Modifications (not altering text):
C3
Functions transferred and references to “Data Protection Commissioner” and “Office of the Data Protection Commission” construed (25.05.2018) by Data Protection Act 2018 (7/2018), s. 14(1), (2), (4), in effect as per ss. 9, 14(4).
Note establishment of the Data Protection Commission (25.05.2018) by Data Protection Act 2018 (7/2018), s. 10(1), in effect as per s. 9.
Transfer of functions of Data Protection Commissioner to Commission
14. (1) All functions that, immediately before the establishment day, were vested in the Data Protection Commissioner are transferred to the Commission.
(2) A reference in any enactment or instrument under an enactment to the Data Protection Commissioner or to the Office of the Data Protection Commissioner shall be construed as a reference to the Commission.
…
(4) This section shall come into operation on the establishment day.
C4
Reference to “processing” construed (25.05.2018) by Data Protection Act 2018 (7/2018), s. 166, S.I. No. 174 of 2018.
Reference to processing in enactment
166. Subject to this Act, a reference in any enactment to processing within the meaning of the Act of 1988 shall be construed as including a reference to processing within the meaning of—
(a) the Data Protection Regulation, and
(b) Part 5.
Section 5
Access to data.
5.— A service provider shall not access data retained in accordance with section 3 except—
(a) at the request and with the consent of a person to whom the data relate,
(b) for the purpose of complying with a F13[disclosure requirement],
(c) in accordance with a court order, or
(d) as may be authorised by the Data Protection Commissioner.
Annotations
Amendments:
F13
Substituted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 10(2), S.I. No. 287 of 2023, art. 3(h).
Modifications (not altering text):
C5
Functions transferred and references to “Data Protection Commissioner” and “Office of the Data Protection Commission” construed (25.05.2018) by Data Protection Act 2018 (7/2018), s. 14(1), (2), (4), in effect as per ss. 9, 14(4).
Note establishment of the Data Protection Commission (25.05.2018) by Data Protection Act 2018 (7/2018), s. 10(1), in effect as per s. 9.
Transfer of functions of Data Protection Commissioner to Commission
14. (1) All functions that, immediately before the establishment day, were vested in the Data Protection Commissioner are transferred to the Commission.
(2) A reference in any enactment or instrument under an enactment to the Data Protection Commissioner or to the Office of the Data Protection Commissioner shall be construed as a reference to the Commission.
…
(4) This section shall come into operation on the establishment day.
Section 6
F14[
Requirement to disclose user data
6.— (1) A member of the Garda Síochána not below the rank of superintendent may require a service provider to disclose to that member user data in the possession or control of the service provider—
(a) where the member believes that the data relate to a person whom the member suspects, on reasonable grounds of—
(i) having committed an offence, or
(ii) presenting an actual or potential threat to the security of the State,
or
(b) where the member has reasonable grounds for believing that the data are otherwise required for the purpose of—
(i) preventing, detecting, investigating or prosecuting offences,
(ii) safeguarding the security of the State,
(iii) protecting the life or personal safety of a person, in circumstances where the member believes that there is a serious risk to the life or personal safety of the person, or
(iv) determining the whereabouts of a missing person.
(2) A member of the Permanent Defence Force not below the rank of lieutenant colonel may require a service provider to disclose to that member user data in the possession or control of the service provider—
(a) where the member believes that the data relate to a person whom the member suspects, on reasonable grounds, of presenting an actual or potential threat to the security of the State, or
(b) where the member has reasonable grounds for believing that the data are otherwise required for the purpose of safeguarding the security of the State.
F15[(3) An officer of the Revenue Commissioners not below the rank of principal officer may require a service provider to disclose to that officer user data in the possession or control of the service provider—
(a) where the F16[officer] believes that the data relate to a person whom the officer suspects, on reasonable grounds, of having committed a revenue offence, or
(b) where the officer has reasonable grounds for believing that the data are otherwise required for the purpose of preventing, detecting, investigating or prosecuting a revenue offence.
(4) An officer of the Competition and Consumer Protection Commission not below the rank of principal officer may require a service provider to disclose to that officer user data in the possession or control of the service provider—
(a) where the F16[officer] believes that the data relate to a person whom the officer suspects, on reasonable grounds, of having committed a competition offence, or
(b) where the officer has reasonable grounds for believing that the data are otherwise required for the purpose of preventing, detecting, investigating or prosecuting a competition offence.]
(5) Subject to subsection (6), a requirement under this section shall be given to a service provider by notice in writing.
(6) If the member or officer concerned considers that the circumstances that warrant the making of a requirement under this section are of exceptional urgency, he or she may make such a requirement other than in writing.
(7) A member or officer who makes a requirement under this section in accordance with subsection (6) shall, not later than 2 days after the making of the requirement, give to the service provider of whom the requirement was made a notice in writing—
(a) specifying the requirement, and
(b) certifying that the requirement was made other than in writing due to the existence of circumstances of exceptional urgency.
(8) A service provider shall, as soon as practicable after a notice under subsection (5) is given to him or her or, where applicable, a requirement is made of him or her under subsection (6), comply with the requirement concerned.]
Annotations
Amendments:
F14
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 5, S.I. No. 287 of 2023, art. 3(d).
F15
Inserted (1.08.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 5, S.I. No. 390 of 2023.
F16
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(d)(i), (ii), S.I. No. 391 of 2023.
Editorial Notes:
E1
Previous affecting provisions: subs. (3A) inserted and text in subs. (4) substituted (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), s. 89(b)(i), (ii), S.I. No. 366 of 2014, in effect as per reg. 2; section substituted (26.06.2023) as per F-note above.
Section 6A
F17[
Authorisation to require disclosure of Schedule 2 data
6A.— (1) A member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for an authorisation under this section where the member is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the member suspects, upon reasonable grounds, of presenting an actual or potential threat to the security of the State, or
(b) are otherwise required for the purpose of safeguarding the security of the State.
(2) A member of the Permanent Defence Force not below the rank of commandant may apply to an authorising judge for an authorisation under this section where the member is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the member suspects, upon reasonable grounds, of presenting an actual or potential threat to the security of the State, or
(b) are otherwise required for the purpose of safeguarding the security of the State.
(3) An application for an authorisation under this section shall—
(a) be made ex parte,
(b) be upon information on oath, specifying the grounds on which the order is sought,
(c) specify, by reference to the criteria specified in subsection (6), the terms of the authorisation sought, and
(d) be heard otherwise than in public.
(4) An authorising judge, as respects an application for an authorisation under this section, may issue an authorisation only if satisfied that—
(a) paragraph (a) or (b) of subsection (1) or, as the case may be, subsection (2), applies in respect of the application, and
(b) the issuing of the authorisation is necessary for, and proportionate to, the purposes for which the application is made.
(5) An authorisation under this section shall authorise the applicant concerned, at any time in the period during which the authorisation has effect, to require the service provider specified in the authorisation to disclose to that applicant Schedule 2 data in the service provider’s possession or control—
(a) of such class or classes as are specified in the authorisation, and
(b) subject to such conditions and directions as may be specified in the authorisation.
(6) For the purposes of subsection (5)(a), an authorising judge may specify a class or classes of Schedule 2 data by reference to one or more of the following:
(a) a particular location or locations;
(b) a particular geographical area or areas;
(c) a particular period of time;
(d) a particular means of communication;
(e) a particular person or particular persons;
(f) such other matter or feature as the authorising judge considers appropriate.
(7) This section shall apply to Schedule 2 data irrespective of whether an order under section 3A is in effect in relation to such data.]
Annotations
Amendments:
F17
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 6, S.I. No. 287 of 2023, art. 3(e)(i).
Insertion of this section after s. 6 confirmed (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 86, S.I. No. 391 of 2023.
Section 6B
F18[
Authorisation to require disclosure of Schedule 2 data in case of urgency
6B.— (1) Subject to subsection (13), a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for an authorisation under this section where the member believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 6A(1) applies to the Schedule 2 data in respect of which the application is made, and
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to an authorisation under section 6A—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the security of the State would be compromised.
(2) Subject to subsection (13), a member of the Permanent Defence Force not below the rank of commandant may apply to a superior officer for an authorisation under this section where the member believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 6A(2) applies to the Schedule 2 data in respect of which the application is made, and (b) it is likely that, before the Schedule 2 data could be obtained pursuant to an authorisation under section 6A—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the security of the State would be likely to be compromised.
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to an authorisation under section 6A—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the security of the State would be likely to be compromised.
(3) A superior officer to whom an application under subsection (1) or (2) is made shall issue an authorisation under this section only if satisfied that—
(a) paragraphs (a) and (b) of the subsection concerned apply in respect of the Schedule 2 data concerned, and
(b) the issuing of the authorisation is necessary for, and proportionate to, the purposes for which the application is made.
(4) An authorisation under this section shall authorise the applicant concerned, at any time in the period during which the authorisation has effect, to require the service provider specified in the authorisation to disclose to the applicant Schedule 2 data—
(a) of such class or classes as are specified in the authorisation and in the service provider’s possession or control, and
(b) subject to such conditions and directions as may be specified in the authorisation.
(5) For the purposes of subsection (4)(a), a superior officer may specify a class or classes of Schedule 2 data by reference to one or more of the following:
(a) a particular location or locations;
(b) a particular geographical area or areas;
(c) a particular period of time;
(d) a particular means of communication;
(e) a particular person or particular persons;
(f) such other matter or feature as the superior officer considers appropriate.
(6) A superior officer shall, not later than 8 hours after he or she issues an authorisation under this section, prepare a record in writing, in such form as may be prescribed, of the authorisation.
(7) (a) A superior officer shall, not later than 7 days after he or she issues an authorisation under this section, prepare a report in relation to the issuing of the authorisation.
(b) The record prepared in accordance with subsection (6) in relation to an authorisation shall be included in the report prepared under this section in relation to that authorisation.
(8) A report prepared under subsection (7) shall:
(a) in relation to an authorisation issued pursuant to an application under subsection (1), be submitted by the superior officer concerned to a member of the Garda Síochána not below the rank of chief superintendent;
(b) in relation to an authorisation issued pursuant to an application under subsection (2), be submitted by the superior officer concerned to a member of the Permanent Defence Force not below the rank of colonel.
(9) F19[Subject to subsection (15), a superior officer] shall, as soon as possible and, in any event, not later than 72 hours after he or she issues an authorisation under this section, apply to an authorising judge for affirmation of the authorisation.
(10) An application under subsection (9) for affirmation of an authorisation shall—
(a) be made F19[ex parte,]
(b) be upon information on oath, specifying the grounds on which the authorisation was F19[issued, and]
F20[(c) be heard otherwise than in public.]
(11) An authorising judge, on hearing an application under subsection (9), shall consider whether the authorisation was necessary for, and proportionate to, the purposes for which it was issued and may—
(a) affirm,
(b) vary, or
(c) revoke,
the authorisation.
(12) An authorising judge who revokes, under subsection (11)(c), an authorisation, may, where he or she considers it reasonable to do so, apply to the referee referred to in section 10 to conduct an investigation under that section in relation to the matter.
(13) An application for an authorisation under this section shall not be made to a superior officer who has had any involvement in the investigation, detection or prevention of a threat or apprehended threat to the security of the State that occasioned the making of the application and, accordingly, such a superior officer shall not consider such an application or issue an authorisation upon such an application.
(14) Subject to subsection (15), an authorisation under this section shall cease to have effect upon the expiration of 72 hours from the issue of the authorisation, or such shorter period as the superior officer may specify in the authorisation.
(15) Where, due to exceptional circumstances that are beyond his or her control, a superior officer is unable to make an application under subsection (9) within the period specified in that subsection, he or she—
(a) may extend the period during which the authorisation concerned shall have effect by such further period as he or she considers necessary for, and proportionate to, the purposes for which the authorisation was issued, provided that the total period during which an authorisation to which this subsection applies shall have effect shall not exceed 96 hours from the issue of the authorisation, and
(b) where he or she extends under paragraph (a) the period during which the authorisation shall have effect, shall make an application under F19[subsection (9)] before the authorisation ceases to have effect.
(16) This section shall apply to Schedule 2 data irrespective of whether an order under section 3A is in effect in relation to such data.]
Annotations
Amendments:
F18
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 6, S.I. No. 287 of 2023, art. 3(e)(i).
F19
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(e)(i), (ii)(I), (II), (iii), S.I. No. 391 of 2023.
F20
Inserted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(e)(ii)(III), S.I. No. 391 of 2023.
Section 6C
F21[
Authorisation to require disclosure of internet source data
6C.— (1) A member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for an authorisation under this section where the member is of the belief that the internet source data in respect of which the application is made—
(a) relate to a person whom the member suspects, on reasonable grounds of—
(i) having committed a serious offence, or
(ii) presenting an actual or potential threat to the security of the State,
or
(b) are otherwise required to be preserved for the purpose of—
(i) preventing, detecting, investigating or prosecuting a serious offence,
(ii) safeguarding the security of the State,
(iii) protecting the life or personal safety of a person, in circumstances where the member believes that there is a serious risk to the life or personal safety of the person, or
(iv) determining the whereabouts of a missing person.
(2) A member of the Permanent Defence Force not below the rank of commandant may apply to an authorising judge for an authorisation under this section where the member is of the belief that the internet source data in respect of which the application is made—
(a) relate to a person whom the member suspects, upon reasonable grounds, of presenting an actual or potential threat to the security of the State, or
(b) are otherwise required for the purpose of safeguarding the security of the State.
(3) An officer of the Revenue Commissioners not below the rank of assistant principal officer may apply to an authorising judge for an authorisation under this section where the officer is of the belief that the internet source data in respect of which the application is made—
(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a revenue offence, or
(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a revenue offence.
F22[(4) An officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to an authorising judge for an authorisation under this section where the officer is of the belief that the internet source data in respect of which the application is made—
(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a competition offence, or
(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a competition offence.]
(5) An application for an authorisation under this section shall—
(a) be made ex parte,
(b) be upon information on oath, specifying the grounds on which the authorisation is sought,
(c) specify, by reference to the criteria specified in subsection (8), the terms of the authorisation sought, and
(d) be heard otherwise than in public.
(6) An authorising judge, as respects an application for an authorisation under this section, may issue an authorisation only if satisfied that—
(a) paragraph (a) or (b) of subsections (1), (2), (3) or (4), as the case may be, applies in respect of the application, and
(b) the issuing of the authorisation is necessary for, and proportionate to, the purposes for which the application was made.
(7) An authorisation under this section shall authorise the applicant concerned, at any time in the period during which the authorisation has effect, to require the service provider specified in the authorisation to disclose to that applicant internet source data in the service provider’s possession or control—
(a) of such class or classes as are specified in the authorisation, and
(b) subject to such conditions and directions as may be specified in the authorisation.
(8) For the purposes of subsection (7)(a), an authorising judge may specify a class of internet source data by reference to any one or more of the following:
(a) a particular location or locations;
(b) a particular geographical area or areas;
(c) a particular period or particular periods of time;
(d) a particular means of communication;
(e) a particular person or particular persons;
(f) such other matter as the authorising judge considers appropriate.]
Annotations
Amendments:
F21
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 6, S.I. No. 287 of 2023, art. 3(e)(ii).
F22
Inserted (1.08.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 6, S.I. No. 390 of 2023.
Section 6D
F23[
Authorisation to require disclosure of internet source data in case of urgency
6D.— (1) Subject to subsection (15), a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for an authorisation under this section where the member believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 6C(1) apply to the internet source data in respect of which the application is made, and
(b) it is likely that, before the internet source data could be obtained pursuant to an authorisation under section 6C—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable,
(ii) the achievement of an objective specified in section 6C(1)(b) would be impeded, or
(iii) the security of the State would be compromised.
(2) Subject to subsection (15), a member of the Permanent Defence Force not below the rank of commandant may apply to a superior officer for an authorisation under this section where the member believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 6C(2) apply to the internet source data in respect of which the application is made, and
(b) it is likely that, before the internet source data could be obtained pursuant to an authorisation under section 6C—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the security of the State would be compromised.
(3) Subject to subsection (15), an officer of the Revenue Commissioners not below the rank of assistant principal officer may apply to a superior officer for an authorisation under this section where the officer believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 6C(3) applies to the internet source data in respect of which the application is made, and
(b) it is likely that, before the internet source data could be obtained pursuant to an authorisation under section 6C—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the prevention, detection, investigation or prosecution of a revenue offence would be impeded.
F24[(4) Subject to subsection (15), an officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to a superior officer for an authorisation under this section where the officer believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 6C(4) apply to the internet source data in respect of which the application is made, and
(b) it is likely that, before the internet source data could be obtained pursuant to an authorisation under section 6C—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the prevention, detection, investigation or prosecution of a competition offence would be impeded.]
(5) A superior officer to whom an application under subsection (1), (2), (3) or (4) is made shall issue an authorisation under this section only if satisfied that—
(a) paragraphs (a) and (b) of the subsection concerned apply in respect of the internet source data concerned, and
(b) the issuing of the authorisation is necessary for, and proportionate to, the purposes for which the application is made.
(6) An authorisation under this section shall authorise the applicant concerned, at any time in the period during which the authorisation has effect, to require the service provider specified in the authorisation to disclose to the applicant internet source data—
(a) of such class or classes as are specified in the authorisation and in the service provider’s possession or control, and
(b) subject to such conditions and directions as may be specified in the authorisation.
(7) For the purposes of subsection (6)(a), a superior officer may specify a class or classes of internet source data by reference to one or more of the following:
(a) a particular location or locations;
(b) a particular geographical area or areas;
(c) a particular period of time;
(d) a particular means of communication;
(e) a particular person or particular persons;
(f) such other matter or feature as the superior officer considers appropriate.
(8) A superior officer shall, not later than 8 hours after he or she issues an authorisation under this section, prepare a record in writing, in such form as may be prescribed, of the authorisation.
(9) (a) A superior officer shall, not later than 7 days after he or she issues an authorisation under this section, prepare a report in relation to the issuing of the authorisation.
(b) The record prepared in accordance with subsection (8) in relation to an authorisation shall be included in the report prepared under this section in relation to that authorisation.
(10) A report prepared under subsection (9) shall:
(a) in relation to an authorisation issued pursuant to an application under subsection (1), be submitted by the superior officer concerned to a member of the Garda Síochána not below the rank of chief superintendent;
(b) in relation to an authorisation issued pursuant to an application under subsection (2), be submitted by the superior officer concerned to a member of the Permanent Defence Force not below the rank of colonel;
(c) in relation to an authorisation issued pursuant to an application under subsection (3), be submitted by the superior officer concerned to an officer of the Revenue Commissioners not below the rank of assistant secretary general;
F24[(d) in relation to an authorisation issued pursuant to an application under subsection (4), be submitted by the superior officer concerned to an officer of the Competition and Consumer Protection Commission not below the rank of member of the Commission.]
(11) F25[Subject to subsection (17), a superior officer] shall, as soon as possible and, in any event, not later than 72 hours after he or she issues an authorisation under this section, apply to an authorising judge for affirmation of the authorisation.
(12) An application under subsection (11) for affirmation of an authorisation shall—
(a) be made F25[ex parte,]
(b) be upon information on oath, specifying the grounds on which the authorisation was F25[issued, and]
F26[(c) be heard otherwise than in public.]
(13) An authorising judge, on hearing an application under subsection (11), shall consider whether the authorisation was necessary for, and proportionate to, the purposes for which it was issued and may—
(a) affirm,
(b) vary, or
(c) revoke,
the authorisation.
(14) An authorising judge who revokes, under subsection (13)(c), an authorisation, may, where he or she considers it reasonable to do so, apply to the referee referred to in section 10 to conduct an investigation under that section in relation to the matter.
(15) An application for an authorisation under this section shall not be made to a superior officer who has had any involvement in the investigation, detection or prevention of a—
(a) threat or apprehended threat to the security of the State, or
(b) serious offence, revenue offence or competition offence,
that occasioned the making of the application and, accordingly, such a superior officer shall not consider such an application or issue an authorisation upon such an application.
(16) Subject to subsection (17), an authorisation under this section shall cease to have effect upon the expiration of 72 hours from the issue of the authorisation, or such shorter period as the superior officer may specify in the authorisation.
(17) Where, due to exceptional circumstances that are beyond his or her control, a superior officer is unable to make an application under subsection (11) within the period specified in that subsection, he or she—
(a) may extend the period during which the authorisation concerned shall have effect by such further period as he or she considers necessary for, and proportionate to, the purposes for which the authorisation was issued, provided that the total period during which an authorisation to which this subsection applies shall have effect shall not exceed 96 hours from the issue of the authorisation, and
(b) where he or she extends under paragraph (a) the period during which the authorisation shall have effect, shall make an application under subsection (11) before the authorisation ceases to have effect.]
Annotations
Amendments:
F23
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 6, S.I. No. 287 of 2023, art. 3(e)(iii).
F24
Inserted (1.08.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 6, S.I. No. 390 of 2023.
F25
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(f)(i), (ii)(I), (II), S.I. No. 391 of 2023.
F26
Inserted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(f)(ii)(III), S.I. No. 391 of 2023.
Section 6E
F27[
Requirement to disclose cell site location data in case of urgency
6E.— (1) A member of the Garda Síochána not below the rank of inspector may apply to a superior officer for an authorisation under this section where the member believes on reasonable grounds that the cell site location data in respect of which the application was made are required for the purpose of—
(a) protecting the life or personal safety of a person, in circumstances where the member believes that there is a serious risk to the life or personal safety of the person, or
(b) determining the whereabouts of a missing person.
(2) A superior officer to whom an application under subsection (1) is made shall issue an authorisation under this section only if satisfied that—
(a) paragraphs (a) or (b) of the subsection applies in respect of the cell site location data concerned, and
(b) the issuing of the authorisation is necessary for, and proportionate to, the purposes for which the application is made.
(3) Subsections (6) to (12) and subsections (14) to (16) of section 6B shall apply in respect of an authorisation under this section as they apply in respect of an authorisation under that section.
(4) An authorisation under this section shall authorise the applicant concerned, at any time in the period during which the authorisation has effect, to require the service provider specified in the authorisation to disclose to that applicant cell site location data—
(a) specified in the authorisation, and
(b) subject to such conditions and directions as may be specified in the authorisation.
(5) In this F28[section and section 6F,] “cell site location data” mean data processed by means of an electronic communications network that identifies the most recent geographic location of the device or equipment used by a user when availing of a publicly available electronic communications service.]
Annotations
Amendments:
F27
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 6, S.I. No. 287 of 2023, art. 3(e)(iv).
F28
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(g), S.I. No. 391 of 2023.
Section 6F
F29[
Requirement to disclose Schedule 2 data, internet source data or cell site location data
6F.— (1) A member of the Garda Síochána, member of the Permanent Defence Force, officer of the Revenue Commissioners or officer of the Competition and Consumer Protection F30[Commission], as the case may be, to whom an authorisation has been issued under section 6A, 6B, 6C, 6D or 6E may at any time in the period during which the authorisation has effect, by notice in writing require the service provider specified in the authorisation to F30[disclose to the member or officer concerned Schedule 2 data, internet source data or cell site location data, as the case may be]—
(a) of such class or classes as are specified in the authorisation and in the service provider’s possession or control, and
(b) subject to such conditions and directions as may be specified in the authorisation.
(2) A service provider to whom a notice is given under subsection (1) shall comply with the requirement concerned—
(a) where the disclosure requirement is made pursuant to an authorisation under section 6B, 6D or 6E, without delay, and
(b) in any other case, as soon as is practicable.
(3) A member or officer referred to in subsection (1) shall, when he or she gives the notice under that subsection to the service provider concerned, give to the service provider a true copy of the authorisation pursuant to which the disclosure requirement is made.
(4) In proceedings for an offence, a document that purports to be a true copy of an authorisation under section 6A, 6B, 6C, 6D or 6E shall be admissible in evidence without further proof.
(5) For the purposes of this section, a document shall be deemed to be a true copy of an authorisation under section 6A, 6B, 6C, 6D or 6E if it has been certified as being a true copy of that authorisation by an authorising judge.]
Annotations
Amendments:
F29
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 6, S.I. No. 287 of 2023, art. 3(e)(v), subs. (1) commenced insofar as it relates to a member of the Garda Síochána, a member of the Permanent Defence Forces and an officer of the Revenue Commissioners.
Inserted (1.08.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 6, S.I. No. 390 of 2023, subs. (1) commenced except insofar as it relates to a member of the Garda Síochána, a member of the Permanent Defence Forces and an officer of the Revenue Commissioners.
F30
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(h)(i), (ii), S.I. No. 391 of 2023.
Section 7
Service provider to comply with disclosure request.
7.—F31[…]
Annotations
Amendments:
F31
Deleted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022(25/2022), s. 10(3), S.I. No. 287 of 2023, art. 3(h).
Section 7A
F32[
Preservation order in respect of certain Schedule 2 data
7A.— (1) Without prejudice to section 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a preservation order under subsection (3) where the member is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the member suspects, on reasonable grounds of presenting an actual or potential threat to the security of the State, or
(b) are otherwise required to be preserved for the purpose of safeguarding the security of the State.
(2) Without prejudice to section 3A, a member of the Permanent Defence Forces not below the rank of commandant may apply to an authorising judge for a preservation order under subsection (3) where the member is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the member suspects, on reasonable grounds, of presenting an actual or potential threat to the security of the State, or
(b) are otherwise required to be preserved for the purpose of safeguarding the security of the State.
(3) An authorising judge, as respects an application under subsection (1) or (2), may make a preservation order under this subsection only if satisfied that—
(a) paragraph (a) or (b) of subsection (1) or (2), as the case may be, applies to the Schedule 2 data in respect of which the application is made, and
(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.
(4) A preservation order under subsection (3) may be made in respect of Schedule 2 data within the following categories:
(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/583;
(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, including an order under section 3A or a preservation order under this Act, and
(c) such data, not referred to in paragraphs (a) or (b), being data the preservation of which the applicant is legally entitled to request, as may be specified by the authorising judge in the preservation order.
(5) Without prejudice to section 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a preservation order under subsection (8) where the member is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the member suspects, on reasonable grounds of having committed a serious offence, or
(b) are otherwise required to be preserved for the purpose of—
(i) preventing, detecting, investigating or prosecuting a serious offence,
(ii) protecting the life or personal safety of a person, in circumstances where the member believes that there is a serious risk to the life or personal safety of the person, or
(iii) determining the whereabouts of a missing person.
(6) Without prejudice to section 3A, an officer of the Revenue Commissioners not below the rank of assistant principal officer may apply to an authorising judge for a preservation order under subsection (8) where the officer is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a revenue offence, or
(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a revenue offence.
F33[(7) Without prejudice to section 3A, an officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to an authorising judge for a preservation order under subsection (8) where the F34[officer] is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a competition offence, or
(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a competition offence.]
(8) An authorising judge, as respects an application under subsection (5), (6) or (7), may make a preservation order under this subsection only if satisfied that—
(a) paragraph (a) or (b) of subsection (5), (6) or (7), as the case may be, applies to the Schedule 2 data in respect of which the application is made, and
(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.
(9) A preservation order under subsection (8) may be made in respect of Schedule 2 data within the following categories:
(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/584,
(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, other than a order under section 3A or a preservation order under subsection (4), and
(c) such data, not referred to in paragraphs (a) or (b), being data that the applicant is legally entitled to request the preservation of which, as may be specified by the authorising judge in the preservation order.
(10) An application under this section shall—
(a) be made ex parte,
(b) be upon information on oath, specifying the grounds on which the order is sought,
(c) specify, by reference to the criteria specified in subsection (12), the terms of the order sought, and
(d) be heard otherwise than in public.
(11) A preservation order under this section, shall, while it is in effect, require the service provider specified in the order to preserve the Schedule 2 data in his or her possession or control—
(a) of such category or categories as are, in accordance with subsection (4) or (9), specified in the order,
(b) such class or classes as are specified in the order, and
(c) subject to such conditions and directions as may be specified in the order.
(12) For the purposes of subsection (11)(a), an authorising judge may specify a class or classes of Schedule 2 data by reference to one or more of the following:
(a) a particular location or locations;
(b) a particular geographical area or areas;
(c) a particular period of time;
(d) a particular means of communication;
(e) a particular person or particular persons;
(f) such other matter or feature as the authorising judge considers appropriate.
(13) A preservation order shall have effect for 90 days, or such lesser period as may be specified in the order.
(14) Where a preservation order is made under this section, the applicant concerned shall, without delay, cause the order to be served on the service provider specified in the order.
(15) A service provider on whom a preservation order under this section is served shall comply with the order.]
Annotations
Amendments:
F32
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 7, S.I. No. 287 of 2023, reg. 3(f)(i).
F33
Inserted (1.08.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 7, S.I. No. 390 of 2023.
F34
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(i), S.I. No. 391 of 2023.
3 O.J. No. L201, 31.07.2003, p.37
4 O.J. No. L201, 31.07.2003, p.37
Section 7B
F35[
Temporary Preservation Order in respect of certain Schedule 2 data in case of urgency
7B.— (1) Subject to this section, a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for a temporary preservation order under subsection (3) where the member believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 7A(1) applies to the Schedule 2 data in respect of which the application is made, and
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 7A—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the security of the State would be compromised.
(2) Subject to this section, a member of the Permanent Defence Force not below the rank of commandant may apply to a superior officer for a temporary preservation order under subsection (3) where the member believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 7A(2) applies to the Schedule 2 data in respect of which the application is made, and
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 7A—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the security of the State would be likely to be compromised.
(3) A superior officer to whom an application under subsection (1) or (2) is made shall make a temporary preservation order under this subsection only if satisfied that—
(a) paragraph (a) or (b) of subsection (1) or (2), as the case may be, applies to the Schedule 2 data in respect of which the application is made, and
(b) the issuing of the order is necessary for, and proportionate to, the purposes for which an application is made.
(4) A temporary preservation order under subsection (3) may be made in respect of Schedule 2 data within the following categories:
(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/585,
(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, including an order under section 3A or a preservation order under this Act, and
(c) such data, not referred to in paragraphs (a) or (b), being data the preservation of which the applicant is legally entitled to request, as may be specified by the superior officer in the temporary preservation order.
(5) Subject to this section, a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for a temporary preservation order under subsection (8) where the member believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 7A(5) applies to the Schedule 2 data in respect of which the application is made, and
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 7A—
(i) the data would be wholly or partly destroyed or otherwise rendered F36[unavailable, or]
(ii) the achievement of an objective specified in section 7A(5)(b) would be F36[impeded.]
(iii) F37[…]
(6) Subject to this section, an officer of the Revenue Commissioners not below the rank of assistant principal officer may apply to a superior officer for a temporary preservation order under subsection (8) where the officer believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 7A(6) applies to the Schedule 2 data in respect of which the application is made, and
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 7A—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the prevention, detection, investigation or prosecution of a revenue offence would be impeded.
F38[(7) Subject to this section, an officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to a superior officer for a temporary preservation order under subsection (8) where the officer believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 7A(7) applies to the Schedule 2 data in respect of which the application is made, and
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 7A—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the prevention, detection, investigation or prosecution of a competition offence would be impeded.]
(8) A superior officer to whom an application under subsection (5), (6) or (7) is made shall make a temporary preservation order under this subsection only if satisfied that—
(a) paragraph (a) and (b) of subsection (5), (6) or (7), as the case may be, apply to the Schedule 2 data in respect of which the application is made, and
(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.
(9) A temporary preservation order under subsection (8) may be made in respect of Schedule 2 data within the following categories:
(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/586,
(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, other than an order under section 3A or a preservation order under section 7A(4), and
(c) such data, not referred to in paragraphs (a) or (b), being data the preservation of which the applicant is legally entitled to request to have so specified, as may be specified by the superior officer in the temporary preservation order.
(10) A temporary preservation order under this section shall, while it is in effect, require the service provider specified in the order to preserve the relevant data in his or her possession or control—
(a) of such category or categories as are, in accordance with subsection (4) or (9), specified in the order,
(b) of such class or classes as are specified in the order, and
(c) subject to such conditions and directions as may be specified in the order.
(11) For the purposes of subsection (10)(a), a superior officer may specify a class or classes of relevant data by reference to one or more of the following:
(a) a particular location or locations;
(b) a particular geographical area or areas;
(c) a particular period of time, not being more than 90 days, whether starting from the date on which the order is made or such future date as is specified in the order;
(d) a particular means of communication;
(e) a particular person or particular persons;
(f) such other matter or feature as the superior officer considers appropriate.
(12) A superior officer shall, not later than 8 hours after he or she makes an order under this section, prepare a record in writing of the order in such form as may be prescribed.
(13) (a) A superior officer shall, not later than 7 days after he or she makes an order under this section, prepare a report in relation to the making of the order.
(b) The record prepared in accordance with subsection (12) in relation to an order shall be included in the report prepared under this section in relation to that order.
(14) A report prepared under subsection (13) shall:
(a) in relation to an order made pursuant to an application under subsection (1) or (5), be submitted by the superior officer concerned to a member of the Garda Síochána not below the rank of chief superintendent;
(b) in relation to an order made pursuant to an application under subsection (2), be submitted by the superior officer concerned to a member of the Permanent Defence Force not below the rank of colonel;
(c) in relation to an order made pursuant to an application under subsection (6), be submitted by the superior officer concerned to an officer of the Revenue Commissioners not below the rank of assistant secretary general;
F38[(d) in relation to an order made pursuant to an application under subsection (7), be submitted by the superior officer concerned to an officer of the Competition and Consumer Protection Commission not below the rank of member of the Commission.]
(15) Subject to F36[subsection (21)], a superior officer shall, as soon as practicable and, in any event, not later than 72 hours after he or she makes an order under this section, apply to an authorising judge for affirmation of the order.
(16) An application under F36[subsection (15)] for affirmation of an order shall—
(a) be made F36[ex parte,]
(b) be upon information on oath, specifying the reasons for which the order was F36[made, and]
F39[(c) be heard otherwise than in public.]
(17) An authorising judge, on hearing an application under subsection (15), shall consider whether the order was necessary for, and proportionate to, the purposes for which it was issued and may—
(a) affirm,
(b) vary, or
(c) revoke,
the order.
(18) An authorising judge who revokes, under subsection (17)(c), an order may, where he or she considers it reasonable to do so, apply to the referee referred to in section 10 to conduct an investigation under that section in relation to the matter.
(19) An application for an order under this section shall not be made to a superior officer who has had any involvement in the investigation, detection or prevention of a threat or apprehended threat to the security of the State that occasioned the making of the application and, accordingly, such a superior officer shall not consider such an application or make an order upon such an application.
(20) Subject to subsection (21), an order under this section shall cease to have effect upon the expiration of 72 hours from the making of the order, or such shorter period as the superior officer may specify in the order.
(21) Where, due to exceptional circumstances that are beyond his or her control, a superior officer is unable to make an application under subsection (15) within the period specified in that subsection, he or she—
(a) may extend the period during which the order concerned shall have effect by such further period as he or she considers necessary for, and proportionate to, the purpose for which the order was made, provided that the total period during which an order to which this subsection applies shall have effect shall not exceed 96 hours from the making of the order, and
(b) where he or she extends under paragraph (a) the period during which the order shall have effect, shall make an application under subsection (15) before the order ceases to have effect.
(22) Where a temporary preservation order is made under this section, the applicant concerned shall, without delay, cause the order to be served on the service provider specified in the order.
(23) A service provider on whom a temporary preservation order is served shall comply with the order.]
Annotations
Amendments:
F35
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022(25/2022), s. 7, S.I. No. 287 of 2023, reg. 3(f)(ii).
F36
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(j)(i)(I), (II), (ii), (iii)(I)-(III), S.I. No. 391 of 2023.
F37
Deleted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(j)(i)(III), S.I. No. 391 of 2023.
F38
Inserted (1.08.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 7, S.I. No. 390 of 2023.
F39
Inserted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(j)(iii)(IV), S.I. No. 391 of 2023.
5 O.J. No. L201, 31.07.2003, p.37
6 O.J. No. L201, 31.07.2003, p.37
Section 7C
F40[
Production order in respect of certain Schedule 2 data
7C.— (1) Without prejudice to section 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a production order under subsection (3) where the member is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the member suspects, on reasonable grounds of presenting an actual or potential threat to the security of the State, or
(b) are otherwise required to be preserved for the purpose of safeguarding the security of the State.
(2) Without prejudice to section 3A, a member of the Permanent Defence Forces not below the rank of commandant may apply to an authorising judge for a production order under subsection (3) where the member is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the member suspects, on reasonable grounds, of presenting an actual or potential threat to the security of the State, or
(b) are otherwise required to be preserved for the purpose of safeguarding the security of the State.
(3) An authorising judge, as respects an application under subsection (1) or (2), may make a production order under this subsection only if satisfied that—
(a) paragraph (a) or (b) of subsection (1) or (2), as the case may be, applies to the Schedule 2 data in respect of which the application is made, and
(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.
(4) A production order under subsection (3) may be made in respect of Schedule 2 data within the following categories:
(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/587;
(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, including an order under section 3A or a preservation order under this Act, and
(c) such data, not referred to in paragraphs (a) or (b), being data that the applicant is legally entitled to request, as may be specified by the authorising judge in the production order.
(5) Without prejudice to section 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a production order under subsection (8) where the member is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the member suspects, on reasonable grounds of having committed a serious offence, or
(b) are otherwise required to be preserved for the purpose of—
(i) preventing, detecting, investigating or prosecuting a serious offence,
(ii) protecting the life or personal safety of a person, in circumstances where the member believes that there is a serious risk to the life or personal safety of the person, or
(iii) determining the whereabouts of a missing person.
(6) Without prejudice to section 3A, an officer of the Revenue Commissioners not below the rank of assistant principal officer may apply to an authorising judge for a production order under subsection (8) where the officer is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a revenue offence, or
(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a revenue offence.
F41[(7) Without prejudice to section 3A, an officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to an authorising judge for a production order under subsection (8) where the officer is of the belief that the Schedule 2 data in respect of which the application is made—
(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a competition offence, or
(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a competition offence.]
(8) An authorising judge, as respects an application under subsection (5), (6) or (7), may make a production order under this subsection only if satisfied that—
(a) paragraph (a) or (b) of subsection (5), (6) or (7), as the case may be, applies to the Schedule 2 data in respect of which the application is made, and
(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.
(9) A production order under subsection (8) may be made in respect of Schedule 2 data within the following categories:
(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/588;
(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, other than a order under section 3A or a preservation order under section 7A(4), and
(c) such data, not referred to in paragraphs (a) or (b), being data that the applicant is legally entitled to request, as may be specified by the authorising judge in the production order.
(10) An application under this section shall—
(a) be made ex parte,
(b) be upon information on oath, specifying the grounds on which the order is sought,
(c) specify, by reference to the criteria specified in subsection (12), the terms of the order sought, and
(d) be heard otherwise than in public.
(11) A production order under this section shall, while it is in effect, require the service provider specified in the order to produce, as soon as is practicable, to the person specified in the order the Schedule 2 data that in his or her possession or control on the date on which the order is served upon him or her—
(a) of such category or categories as are, in accordance with subsection (4) or (9), specified in the order,
(b) such class or classes as are specified in the order, and
(c) subject to such conditions and directions as may be specified in the order.
(12) For the purposes of subsection (11)(a), an authorising judge may specify a class or classes of Schedule 2 data by reference to one or more of the following:
(a) a particular location or locations;
(b) a particular geographical area or areas;
(c) a particular period of time;
(d) a particular means of communication;
(e) a particular person or particular persons;
(f) such other matter or feature as the authorising judge considers appropriate.
(13) Where a production order is made under this section, the applicant concerned shall, without delay, cause the order to be served on the service provider specified in the order.
(14) A service provider on whom a production order is served shall comply with the order.]
Annotations
Amendments:
F40
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 7, S.I. No. 287 of 2023, art. 3(f)(iii).
F41
Inserted (1.08.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 7, S.I. No. 390 of 2023.
7 O.J. No. L201, 31.07.2003, p.37
8 O.J. No. L201, 31.07.2003, p.37
Section 7D
F42[
Temporary Production Order in respect of certain Schedule 2 data in case of urgency
7D.— (1) Subject to this section, a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for a temporary production order under subsection (3) where the member believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 7C(1) applies to the Schedule 2 data in respect of which the application is made, and
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to a production order under section 7C—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the security of the State would be compromised.
(2) Subject to this section, a member of the Permanent Defence Force not below the rank of commandant may apply to a superior officer for a temporary production order under subsection (3) where the member believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 7C(2) applies to the Schedule 2 data in respect of which the application is made, and
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to a production order under section 7C—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the security of the State would be likely to be compromised.
(3) A superior officer to whom an application under subsection (1) or (2) is made shall make a temporary production order under this subsection only if satisfied that—
(a) paragraph (a) or (b) of subsection (1) or (2), as the case may be, applies to the Schedule 2 data in respect of which the application is made, and
(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.
(4) A temporary production order under subsection (3) may be made in respect of Schedule 2 data within the following categories:
(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/589;
(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, including an order under section 3A or a preservation order under this Act, and
(c) such data, not referred to in paragraphs (a) or (b), being data that the applicant is legally entitled to request, as may be specified by the superior officer in the temporary production order.
(5) Subject to this section, a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for a temporary production order under subsection (8) where the member believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 7C(5) applies to the Schedule 2 data in respect of which the application is made, and
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 7C—
(i) the data would be wholly or partly destroyed or otherwise rendered F43[unavailable, or]
(ii) the achievement of an objective specified in section 7C(5)(b) would be F43[impeded.]
(iii) F44[…]
(6) Subject to this section, an officer of the Revenue Commissioners not below the rank of assistant principal officer may apply to a superior officer for a temporary production order under subsection (8) where the officer believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 7C(6) applies to the Schedule 2 data in respect of which the application is made, and
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to a production order under section 7C—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the prevention, detection, investigation or prosecution of a revenue offence would be impeded.
F45[(7) Subject to this section, an officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to a superior officer for a temporary production order under subsection (8) where the officer believes on reasonable grounds that—
(a) paragraph (a) or (b) of section 7C(7) applies to the Schedule 2 data in respect of which the application is made, and
(b) it is likely that, before the Schedule 2 data could be obtained pursuant to a production order under section 7C—
(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or
(ii) the prevention, detection, investigation or prosecution of a competition offence would be impeded.]
(8) A superior officer to whom an application under subsection (5), (6) or (7) is made shall make a temporary production order under this subsection only if satisfied that—
(a) paragraph (a) or (b) of subsection (5), (6) or (7), as the case may be, applies to the Schedule 2 data in respect of which the application is made, and
(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.
(9) A temporary production order under subsection (8) may be made in respect of Schedule 2 data within the following categories:
(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/5810;
(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, other than an order under section 3A or a preservation order under section 7A(4), and
(c) such data, not referred to in paragraphs (a) or (b), being data that the applicant is legally entitled to request, as may be specified by the superior officer in the temporary production order.
(10) A temporary production order under this section shall, while it is in effect, require the service provider specified in the order to produce to the person specified in the order the Schedule 2 data in his or her possession or control on the date on which the order is served on him or her—
(a) of such category or categories as are, in accordance with subsection (4) or (9), specified in the order,
(b) of such class or classes as are specified in the order, and
(c) subject to such conditions and directions as may be specified in the order.
(11) For the purposes of subsection (10)(a), a superior officer may specify a class or classes of relevant data by reference to one or more of the following:
(a) a particular location or locations;
(b) a particular geographical area or areas;
(c) a particular period of time, not being more than 90 days, whether starting from the date on which the order is made or such future date as is specified in the order;
(d) a particular means of communication;
(e) a particular person or particular persons;
(f) such other matter or feature as the superior officer considers appropriate.
(12) A superior officer shall, not later than 8 hours after he or she makes an order under this section, prepare a record in writing of the order in such form as may be prescribed.
(13) (a) A superior officer shall, not later than 7 days after he or she makes an order under this section, prepare a report in relation to the making of the order.
(b) The record prepared in accordance with subsection (12) in relation to an order shall be included in the report prepared under this section in relation to that order.
(14) A report prepared under subsection (13) shall:
(a) in relation to an order made pursuant to an application under subsection (1) or (5), be submitted by the superior officer concerned to a member of the Garda Síochána not below the rank of chief superintendent;
(b) in relation to an order made pursuant to an application under subsection (2), be submitted by the superior officer concerned to a member of the Permanent Defence Force not below the rank of colonel;
(c) in relation to an order made pursuant to an application under subsection (6), be submitted by the superior officer concerned to an officer of the Revenue Commissioners not below the rank of assistant secretary general;
F45[(d) in relation to an order made pursuant to an application under subsection (7), be submitted by the superior officer concerned to an officer of the Competition and Consumer Protection Commission not below the rank of member of the Commission.]
(15) Subject to subsection (21), a superior officer shall, as soon as practicable and, in any event, not later than 72 hours after he or she makes an order under this section, apply to an authorising judge for affirmation of the order.
(16) An application under subsection (15) for affirmation of an order shall—
(a) be made F43[ex parte,]
(b) be upon information on oath, specifying the reasons for which the order was F43[made, and]
F46[(c) be heard otherwise than in public.]
(17) An authorising judge, on hearing an application under subsection (15), shall consider whether the order was necessary for, and proportionate to, the purposes for which it was issued and may—
(a) affirm,
(b) vary, or
(c) revoke,
the order.
(18) An authorising judge who revokes, under subsection (17)(c), an order may, where he or she considers it reasonable to do so, apply to the referee referred to in section 10 to conduct an investigation under that section in relation to the matter.
(19) An application for an order under this section shall not be made to a superior officer who has had any involvement in the investigation, detection or prevention of—
(a) threat or apprehended threat to the security of the State, or
(b) serious offence, revenue offence or competition offence,
that occasioned the making of the application and, accordingly, such a superior officer shall not consider such an application or make an order upon such an application.
(20) Subject to subsection (21), an order under this section shall cease to have effect upon the expiration of 72 hours from the making of the order, or such shorter period as the superior officer may specify in the order.
(21) Where, due to exceptional circumstances that are beyond his or her control, a superior officer is unable to make an application under subsection (15) within the period specified in that subsection, he or she—
(a) may extend the period during which the order concerned shall have effect by such further period as he or she considers necessary for, and proportionate to, the purpose for which the order was made, provided that the total period during which an order to which this subsection applies shall have effect shall not exceed 96 hours from the making of the order, and
(b) where he or she extends under paragraph (a) the period during which the order shall have effect, shall make an application under subsection (15) before the order ceases to have effect.
(22) Where a temporary production order is made under this section, the applicant concerned shall, without delay, cause the order to be served on the service provider specified in the order.
(23) A service provider on whom a temporary production order is served shall comply with the order.]
Annotations
Amendments:
F42
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022(25/2022), s. 7, S.I. No. 287 of 2023, art. 3(f)(iv).
F43
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(k)(i)(I), (II), (ii)(I), (II), S.I. No. 391 of 2023.
F44
Deleted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(k)(i)(III), S.I. No. 391 of 2023.
F45
Inserted (1.08.2023) by Communications (Retention of Data) (Amendment) Act 2022(25/2022), s. 7, S.I. No. 390 of 2023.
F46
Inserted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(k)(ii)(III), S.I. No. 391 of 2023.
10 O.J. No. L201, 31.07.2003, p.37
9 O.J. No. L201, 31.07.2003, p.37
Section 8
Processing for other purpose.
8.— Where all or part of the period specified in a data retention request coincides with the period during which any of the data specified in the request may, in accordance with law, be processed for purposes other than those specified in the request, nothing in section 6 shall prevent those data from being processed for those other purposes.
Annotations
Modifications (not altering text):
C6
Reference to “processing” construed (25.05.2018) by Data Protection Act 2018 (7/2018), s. 166, S.I. No. 174 of 2018.
Reference to processing in enactment
166. Subject to this Act, a reference in any enactment to processing within the meaning of the Act of 1988 shall be construed as including a reference to processing within the meaning of—
(a) the Data Protection Regulation, and
(b) Part 5.
Section 9
Statistics.
9.— (1) The Garda Commissioner shall prepare and submit a report to the Minister in respect of data specified in Schedule 2 that were the subject of all F47[disclosure requirements made by a member of the Garda Síochána under section 6(1), 6F(1), F48[7C or 7D]] during the relevant period.
(2) The Chief of Staff of the Permanent Defence Force shall prepare and submit a report to the Minister for Defence in respect of data specified in Schedule 2 that were the subject of all F47[disclosure requirements made under section 6(2), 6F(1), F48[7C or 7D]] during the relevant period.
(3) The Revenue Commissioners shall prepare and submit a report to the Minister for Finance in respect of data specified in Schedule 2 that were the subject of all F47[disclosure requirements made under section 6(3), 6F(1), F48[7C or 7D]] during the relevant period.
F49[(3A) The Competition and Consumer Protection Commission shall prepare and submit a report to the Minister for Jobs, Enterprise and Innovation in respect of data specified in Schedule 2 that were the subject of all F47[disclosure requirements made under section 6(4), 6F(1), F48[7C or 7D]] during the relevant period.]
(4) A report under F50[subsection (1), (2), (3) or (3A)] shall be submitted as soon as is practicable after the end of the relevant period.
(5) The report shall include—
(a) the number of times when data had been disclosed in response to a F47[disclosure requirement],
(b) the number of times when a F47[disclosure requirement] could not be met,
(c) the average period of time between the date on which the retained data were first processed and the F48[date on which the disclosure requirement was made].
(6) The Minister for Defence shall review the report submitted under subsection (2) and shall forward it to the Minister, along with any comments that he or she may have with respect to it.
(7) The Minister for Finance shall review the report submitted under subsection (3) and shall forward it to the Minister, along with any comments that he or she may have with respect to it.
F49[(7A) The Minister for Jobs, Enterprise and Innovation shall review the report submitted under subsection (3A) and shall forward it to the Minister, along with any comments that he or she may have with respect to it.]
(8) The Minister, on receipt of the report submitted under subsection (1) and the reports forwarded to him or her under F50[subsections (6), (7) and (7A)] shall review the reports and the comments and shall prepare a State report that consolidates those reports and submit it to the European Commission.
(9) A State report shall be submitted as soon as is practicable after the end of the relevant period.
(10) The State report shall include the matters referred to in subsection (5).
(11) For the purposes of this section, “relevant period” means—
(a) the period beginning on the day on which this Act commences and ending on the 31 December next following that day, and
(b) each successive 12 month period.
Annotations
Amendments:
F47
Substituted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 10(4)(a)-(d), S.I. 287 of 2023, art. 3(h).
F48
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(l)(i)-(v), S.I. No. 391 of 2023.
F49
Inserted (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), s. 89(c)(i), (iii), S.I. No. 366 of 2014, in effect as per reg. 2.
F50
Inserted (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), s. 89(c)(ii), (iv), S.I. No. 366 of 2014, in effect as per reg. 2.
Modifications (not altering text):
C7
Functions transferred and references to “Department of Finance” and “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.
2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.
(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.
3. The functions conferred on the Minister for Finance by or under the provisions of —
(a) the enactments specified in Schedule 1, and
(b) the statutory instruments specified in Schedule 2,
are transferred to the Minister for Public Expenditure and Reform.
…
5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.
…
Schedule 1
Enactments
…
Part 2
1922 to 2011 Enactments
Number and Year
Short Title
Provision
(1)
(2)
(3)
…
…
…
No. 3 of 2011
Communications (Retention of Data) Act 2011
Section 9(7)
…
…
…
Editorial Notes:
E2
Previous affecting provision: subs. (5)(c) amended (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 10(4)(e), S.I. 287 of 2023, art. 3(h); substituted (1.08.2023) as per F-note above.
Section 10
Complaints procedure.
10.— (1) A contravention of F51[section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7C or 7D] in relation to a F51[disclosure requirement] shall not of itself render that disclosure request invalid or constitute a cause of action at the suit of a person affected by the F51[disclosure requirement], but any such contravention shall be subject to investigation in accordance with the subsequent provisions of this section and nothing in this subsection shall affect a cause of action for the infringement of a constitutional right.
(2) A person who believes that data that relate to the person and that are in the possession of a service provider have been accessed following a F51[disclosure requirement] may apply to the Referee for an investigation into the matter.
(3) If an application is made under this section (other than one appearing to the Referee to be frivolous or vexatious), the Referee shall investigate—
(a) whether a F51[disclosure requirement] was made as alleged in the application, and
(b) if so, whether any provision of F51[section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7C or 7D] has been contravened in relation to the F51[disclosure requirement].
(4) If, after investigating the matter, the Referee concludes that a provision of F51[section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7C or 7D] has been contravened, the Referee shall—
(a) notify the applicant in writing of that conclusion, and
(b) make a report of the Referee’s findings to the Taoiseach.
(5) In addition, in the circumstances specified in subsection (4), the Referee may, if he or she thinks fit, by order do either or both of the following—
F52[(a) direct An Garda Síochána, the Permanent Defence Force, the Revenue Commissioners or the Competition and Consumer Protection Commission to destroy the relevant data and any copies of the data,]
(b) make a recommendation for the payment to the applicant of such sum by way of compensation as may be specified in the order.
(6) The Minister shall implement any recommendation under subsection (5) (b).
(7) If, after investigating the matter, the Referee concludes that section 6 has not been contravened, the Referee shall notify the applicant in writing to that effect.
(8) A decision of the Referee under this section is final.
(9) For the purpose of an investigation under this section, the Referee is entitled to access, and has the power to inspect, any official documents or records relating to the relevant application.
(10) Any person who was concerned in, or has information relevant to, the making of a F51[disclosure requirement] in respect of which an application is made under this section shall give the Referee, on his or her request, such information relating to F53[the requirement] as is in the person’s possession.
Annotations
Amendments:
F51
Substituted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 10(5)(a)-(d), S.I. No. 287 of 2023, art. 3(h).
F52
Inserted (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), s. 89(d), S.I. No. 366 of 2014, in effect as per art. 2.
F53
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(m), S.I. No. 391 of 2023.
Section 11
Amendment of section 8 (Review of operation of Act by judge of High Court) of Act of 1993.
11.— Section 8 of the Act of 1993 is amended by the substitution of the following for subsection (1):
“(1) The President of the High Court shall from time to time after consulting with the Minister invite a person who is a judge of the High Court to undertake (while serving as such a judge) the duties specified in this section and section 12 of the Communications (Retention of Data) Act 2011 and, if the invitation is accepted, the Government shall designate the judge for the purposes of this Act and the Communications (Retention of Data) Act 2011.
(1A) Subsection (1) does not affect the functions of the Data Protection Commissioner under section 10 of the Data Protection Act 1988.”.
Annotations
Modifications (not altering text):
C8
Functions transferred and references to “Data Protection Commissioner” and “Office of the Data Protection Commission” construed (25.05.2018) by Data Protection Act 2018 (7/2018), s. 14(1), (2), (4), in effect as per ss. 9, 14(4).
Note establishment of the Data Protection Commission (25.05.2018) by Data Protection Act 2018 (7/2018), s. 10(1), in effect as per s. 9.
Transfer of functions of Data Protection Commissioner to Commission
14. (1) All functions that, immediately before the establishment day, were vested in the Data Protection Commissioner are transferred to the Commission.
(2) A reference in any enactment or instrument under an enactment to the Data Protection Commissioner or to the Office of the Data Protection Commissioner shall be construed as a reference to the Commission.
…
(4) This section shall come into operation on the establishment day.
Section 12
Duties of designated judge in relation to this Act.
12.— (1) In addition to the duties assigned under section 8 of the Act of 1993, the designated judge shall—
(a) keep the operation of the provisions of this Act under review,
F54[(b) ascertain whether An Garda Síochána, the Permanent Defence Force, the Revenue Commissioners and the Competition and Consumer Protection Commission are complying with its provisions, and]
(c) include, in the report to the Taoiseach under section 8(2) of the Act of 1993, such matters relating to this Act that the designated judge considers appropriate.
(2) For the purpose of carrying out the duties assigned under this section, the designated judge—
(a) has the power to investigate any case in which a F55[disclosure requirement] is made, and
(b) may access and inspect any official documents or records relating to the F56[requirement].
(3) Any person who was concerned in, or has information relevant to, the preparation or making of a F55[disclosure requirement] shall give the designated judge, on his or her request, such information relating to F56[the requirement] as is in the person’s possession.
F57[(4) The designated judge may, if he or she considers it desirable to do so, communicate with the Taoiseach or the Minister concerning F56[disclosure requirements] and with the Data Protection Commission in connection with its functions under the Data Protection Regulation and the Data Protection Acts 1988 to 2018.
(5) In this section, “Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 201639 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).]
Annotations
Amendments:
F54
Inserted (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), s. 89(e), S.I. No. 366 of 2014, in effect as per reg. 2.
F55
Substituted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 10(6), S.I. No. 287 of 2023, art. 3(h).
F56
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(n)(i)-(iii), S.I. No. 391 of 2023.
F57
Substituted and inserted (25.05.2018) by Data Protection Act 2018 (7/2018), s. 214, S.I. No. 174 of 2018.
39 OJ No. L 119, 4.5.2016, p.1
Section 12A
F58[
Offences
12A.— (1) A person who contravenes F59[section] 3(1), 3A(7), 3B(1), 6(8), 6F(2), 7A(15), 7B(23), 7C(14) or 7D(23) shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 5 years or both.
(3) In proceedings for an offence under subsection (1), it shall be a defence for a person against whom such proceedings are brought to prove that the person took all reasonable steps and exercised all due diligence to avoid the commission of the offence.
(4) Where an offence under this section is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.]
Annotations
Amendments:
F58
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 287 of 2023, art. 3(g)(i). A class A fine means a fine not greater than €5,000, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 4(1), S.I. No. 662 of 2010.
F59
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(o), S.I. No. 391 of 2023.
Section 12B
F60[
Amendment of Schedule 2
12B.— (1) The Minister may, following consultation with the Minister for Environment, Climate and Communications and in accordance with this section, by regulation amend Schedule 2, where he or she is satisfied that it is necessary to do so in order to ensure that the matters specified in the Schedule adequately reflect developments in electronic communications technology and include data transmitted by means of such technology.
(2) The Minister in exercising the power under subsection (1), may consult with such persons possessing expertise in the area of electronic communications technology as he or she considers appropriate.]
Annotations
Amendments:
F60
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 287 of 2023, art. 3(g)(i).
Section 12C
F61[Guidelines
12C.— The Minister may issue guidelines—
(a) to persons with respect to the making of applications under sections 7A, 7B, 7C and 7D, and
(b) to facilitate compliance by service providers with preservation and production orders.]
Annotations
Amendments:
F61
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 287 of 2023, art. 3(g)(i).
Section 12D
F62[
Retention of data
12D.— A service provider who is required under section 3(1), 3A(5), 3B(1), 7A(11) or 7B(10) to retain or, as may be appropriate, preserve data shall retain or preserve, as the case may be, those data—
(a) in such a way that they may be disclosed without undue delay pursuant to a disclosure request, and
(b) in accordance with regulations, if any, under section 12F(2)(a).]
Annotations
Amendments:
F62
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 287 of 2023, art. 3(g)(i).
Section 12E
F63[
Criteria for specification of geographic area
12E.— A person who, under a provision of this Act, specifies a class or classes of Schedule 2 data by reference to a particular geographical area or areas, shall do so by reference to criteria that are objective and non-discriminatory and, for that purpose, shall have regard to the criteria specified in regulations under section 12F(2)(b) (if any).]
Annotations
Amendments:
F63
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 287 of 2023, art. 3(g)(i).
Section 12F
F64[
Regulations
12F.— (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.
(2) The Minister may by regulations provide for one or more of the following:
(a) the technical requirements to be met by a person who is obliged under this Act to retain or preserve data, including the requirements to be met so as to ensure that data so retained or preserved, when required under this Act to be disclosed—
(i) may be disclosed without delay, and
(ii) are of sufficient quality to be used for the purposes for which the disclosure is required;
(b) the criteria, which shall be objective and non-discriminatory, to which a person shall have regard when specifying a class or classes of Schedule 2 data by reference to a particular geographic area, which may include:
(i) the rate of crime in an area;
(ii) the number of persons normally present in the area;
(iii) the presence in the area of strategic infrastructure;
F65[(c) the procedures for making a requirement under section 6 or 6F and for making an application under section 6A, 6B, 6C, 6D, 6E, 7A, 7B, 7C or 7D.]
(3) Without prejudice to any provision of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.
(4) Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.]
Annotations
Amendments:
F64
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 287 of 2023, art. 3(g)(i).
F65
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(p), S.I. No. 391 of 2023.
Section 12G
F66[
Notification of data subject
12G. (1) Subject to subsection (2), where Schedule 2 data have been disclosed to a person pursuant to a requirement under section 6F(1), 7C or 7D, the Garda Commissioner, the Chief of Staff of the Defence Forces, the Chairman of the Revenue Commissioners, the Chairperson of the Competition and Consumer Protection Commission, as may be appropriate, shall, in accordance with regulations under this section, cause to be given to the person to whom the data relate a notice in writing informing him or her of the disclosure of the data concerned.
(2) Without prejudice to the generality of subsection (1), regulations under this section may provide for any one or more of the following:
(a) the form of the notice to be given under subsection (1);
(b) the information to be provided in that notice, including—
(i) the date on which the Schedule 2 data were disclosed pursuant to the requirement concerned,
(ii) the date on which the requirement was made, and
(iii) the date of the authorisation under section 6A or 6B, the production order under section 7C or temporary production order under section 7D, in respect of the data;
(c) the persons who shall be consulted before such a notice is given in accordance with this section;
(d) the determination of the point in time and circumstances in which a notice should be given having regard to the overriding consideration that this section shall not operate to—
(i) impede the prevention, detection, investigation or prosecution of any serious offence,
(ii) undermine the security of the State, or
(iii) endanger the life or personal safety of any person;
(e) the classes of information that shall not be included in a notice under subsection (1) having regard to the overriding consideration referred to in paragraph (d);
(f) the categories of persons (other than the person to whom the data relate) whose interests are materially affected by the disclosure of traffic and location data pursuant to a disclosure requirement.
(3) This section shall not apply to Schedule 2 data that have been disclosed in compliance with a disclosure requirement made pursuant to—
(a) an authorisation issued under section 6A(5),
F67[(b) an authorisation issued under section 6B,]
(c) a production order made under section 7C(3), or
F67[(d) a temporary production order made under section 7D(3).]]
Annotations
Amendments:
F66
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 287 of 2023, art. 3(g)(ii), subs. (1) insofar as it relates to the Garda Commissioner, the Chief of Staff of the Defence Forces and the Chairman of the Revenue Commissioners.
Inserted (1.08.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 390 of 2023, subs. (1) except insofar as it relates to the Garda Commissioner, the Chief of Staff of the Defence Forces and the Chairman of the Revenue Commissioners.
F67
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(q)(i), (ii), S.I. No. 391 of 2023.
Section 12H
F68[Service of documents
12H.— (1) A notice or other document that is required to be served on or given to a person under this Act shall be addressed to the person concerned by name and shall be so served on or given to the person—
(a) by electronic means,
(b) by delivering it to the person,
(c) by leaving it at the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, at that address,
(d) by sending it by post in a prepaid registered letter or by any other form of recorded delivery service to the address referred to in paragraph (c).
(2) For the purposes of this section, a company within the meaning of the Companies Act 2014 is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.]
Annotations
Amendments:
F68
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 287 of 2023, art. 3(g)(iii).
Section 12I
F69[
Processing of personal data
12I. Personal data that are disclosed to a member of the Garda Síochána, a member of the Permanent Defence Forces, an officer of the Revenue Commissioners or an officer of the Competition and Consumer Protection F70[Commission], pursuant to a requirement under section 6(1), F71[…], 6F(1), 7C(11) or 7D(10) made for the purposes of the prevention, detection, investigation or prosecution of criminal offences, shall be processed in accordance with Part 5 of the Data Protection Act 2018.]
Annotations
Amendments:
F69
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 287 of 2023, art. 3(g)(iv), insofar as it relates to a member of the Garda Síochána, a member of the Permanent Defence Forces and an officer of the Revenue Commissioners.
Inserted (1.08.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 390 of 2023, except insofar as it relates to a member of the Garda Síochána, a member of the Permanent Defence Forces and an officer of the Revenue Commissioners.
F70
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(r)(i), S.I. No. 391 of 2023.
F71
Deleted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(r)(ii), S.I. No. 391 of 2023.
Section 12J
F72[
Provisions relating to authorising judge
12J. (1) The President of the District Court shall designate such and so many judges of the District Court to be authorising judges for the purposes of this Act.
(2) An application to an authorising judge under F73[section] 6A, 6B, 6C, 6D, 7A, 7B, 7C or 7D may be made—
(a) whether or not the service provider in respect of whom the authorisation is issued is resident or located in the District Court district to which the authorising judge stands assigned, and
(b) whether or not the data to which the authorisation applies is retained by the service provider within the District Court district to which the authorising judge stands assigned.]
Annotations
Amendments:
F72
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 8, S.I. No. 287 of 2023, art. 3(g)(v).
F73
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(s), S.I. No. 391 of 2023.
Section 13
Repeal.
13.— (1) Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 is repealed.
(2) Notwithstanding the repeal under subsection (1), data that were the subject of a data retention request under Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 before that repeal may be adduced in evidence in proceedings conducted after that repeal subject to the provisions of this Act applying and having effect.
Section
F74[Transitional provision
13A.— Where, immediately before the date on which section 10 of the Communications (Retention of Data) (Amendment) Act 2022 comes into operation, data is retained by a service provider pursuant to the service provider’s obligation under section 3 (before its amendment by section 3 of the Communications (Retention of Data) (Amendment) Act 2022), the service provider shall, on and from that date, and for the purposes of compliance with disclosure requirements made pursuant to an authorisation under section 6A or 6B, continue to retain such data until the earlier of the following events:
(a) the expiry of a period of 6 months beginning on that date, or
(b) the making of the first order under section 3A.]
Annotations
Amendments:
F74
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 9, S.I. No. 287 of 2023, reg. 3(h).
Editorial Notes:
E3
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 14
Short title.
14.— This Act may be cited as the Communications (Retention of Data) Act 2011.
Schedule 1
SCHEDULE 1
Offences Deemed to be Serious Offences
Section 1.
1. An offence under sections 11 and 12 of the Criminal Assets Bureau Act 1996.
2. An offence under section 6 of the Criminal Evidence Act 1992.
3. An offence under section 12 of the Non-Fatal Offences against the Person Act 1997.
4. An offence under section 1 of the Prevention of Corruption Acts 1889 to 1995.
5. An offence under section 5 of the Protections for Persons Reporting Child Abuse Act 1998.
F75[6. An offence under Regulation 5 or 7 of the European Union (Market Abuse) Regulations 2016.]
Annotations
Amendments:
F75
Inserted (3.07.2016) by European Union (Market Abuse) Regulations 2016 (S.I. No. 349 of 2016), reg. 52, in effect as per reg. 1(2).
Editorial Notes:
E4
Prevention of Corruption Acts 1889 to 1995 were repealed (30.07.2018) by Criminal Justice (Corruption Offences) Act 2018 (9/2018), s. 4 and sch. 2, S.I. No. 298 of 2018.
Schedule 2
SCHEDULE 2
Section 3.
Sch. 2, Part 1
PART 1
Fixed network telephony and mobile telephony data to be retained under section 3
1. Data necessary to trace and identify the source of a communication:
(a) the calling telephone number;
(b) the name and address of the subscriber or registered user.
2. Data necessary to identify the destination of a communication:
(a) the number dialled (the telephone number called) and, in cases involving supplementary services such as call forwarding or call transfer, the number or numbers to which the call is routed;
(b) the name and address of the subscriber or registered user.
3. Data necessary to identify the date and time of the start and end of a communication.
4. Data necessary to identify the type of communication:
the telephone service used.
5. Data necessary to identify users’ communications equipment or what purports to be their equipment:
(a) the calling and called telephone number;
(b) the International Mobile Subscriber Identifier (IMSI) of the called and calling parties (mobile telephony only);
(c) the International Mobile Equipment Identity (IMEI) of the called and calling parties (mobile telephony only);
(d) in the case of pre-paid anonymous services, the date and time of the initial activation of the service and the cell ID from which the service was activated (mobile telephony only).
6. Data necessary (mobile telephony only) to identify the location of mobile communication equipment:
(a) the cell ID at the start of the communication;
(b) data identifying the geographical location of cells by reference to their cell ID during the period for which communication data are retained.
Sch. 2, Part 2
PART 2
Internet access, Internet e-mail and Internet telephony data to be retained under section 3
1. Data necessary to trace and identify the source of a communication:
(a) the user ID allocated;
(b) the user ID and telephone number allocated to any communication entering the public telephone network;
(c) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication.
2. Data necessary to identify the destination of a communication:
(a) the user ID or telephone number of the intended recipient of an Internet telephony call;
(b) the name and address of the subscriber or registered user and user ID of the intended recipient of the communication.
3. Data necessary to identify the date, time and duration of a communication:
(a) the date and time of the log-in and log-off of the Internet access service, based on a certain time zone, together with the IP address, whether dynamic or static, allocated by the Internet access service provider to a communication, and the user ID of the subscriber or registered user;
(b) the date and time of the log-in and log-off of the Internet e-mail service or Internet telephony service, based on a certain time zone.
4. Data necessary to identify the type of communication:
the Internet service used.
5. Data necessary to identify users’ communication equipment or what purports to be their equipment:
(a) the calling telephone number for dial-up access;
(b) the digital subscriber line (DSL) or other end point of the originator of the communication.