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Bill sets rules for holding communications data

The Minister for Justice Helen McEntee has published the general scheme of a bill that changes the current law on the retention of data for national-security purposes.

Earlier this month, the Government approved the drafting of the bill, which is aimed at addressing the impact of recent judgments from the Courts of Justice of the European Union (CJEU).

In a case taken by convicted murderer Graham Dwyer, the CJEU ruled that EU law precluded the general and indiscriminate retention of electronic traffic and location data for the purposes of combating serious crime.

The Communications (Retention of Data) (Amendment) Bill 2022 will allow the general and indiscriminate retention of communications traffic and location data only on national-security grounds, where approved by a designated judge.

‘Quick-freeze’ orders

The bill also sets up a system of preservation orders and production orders. These will facilitate preservation of, and access to, specified data held by service providers for both national-security and for the investigation of serious crime, where permitted by an authorising judge.

A preservation order will act as a “quick freeze”, requiring service providers to retain any specified data they hold at a particular point in time for a period.

A production order will allow access to specified data held by a service provider for commercial or other reasons, where such access is necessary for national-security or law-enforcement purposes.

Both traffic and location data retained for national-security purposes, and subscriber data retained for national-security or law-enforcement purposes, will be held for 12 months.

More comprehensive plan

The minister said that she intended to return to Government next week seeking approval to publish the bill, adding that the urgency was “unavoidable”, given the need for legal certainty for communications companies and State agencies.

"In addition to this urgent bill, I intend to bring forward a more comprehensive proposal later in the year to address wider reforms, and a more consolidated legal framework in this area," she added.

The Department of Justice said that the proposed changes were “without prejudice” to the State’s current appeal to the Supreme Court of a High Court ruling on the act.