Monday, March 30, 2015

Two data retention cases pose questions for three Ministers for Justice

Two cases have now been brought in Ireland seeking to take advantage of the Digital Rights Ireland decision from the European Court of Justice in order to exclude evidence in criminal trials. First, a case stated in the prosecution of a detective garda alleged to have given false information to GSOC; second, a challenge brought by convicted murderer Graham Dwyer - commenced in January but made public only on his conviction last week.

Given how central internet and phone evidence is to many prosecutions, the only surprise is that it's taken this long for these challenges to be brought and no doubt more will come. Unfortunately it is possible that at least some convictions will be overturned as a result - and the blame for this will lie squarely with the Department of Justice and successive ministers.

Ministers Dermot Ahern, Alan Shatter and Frances Fitzgerald in particular have questions to answer.

Dermot Ahern knew in 2011 that data retention was on very shaky ground. By then data retention laws had been struck down in Bulgaria (2008), Romania (2009) and Germany (2010) - and the Irish challenge was pending before the High Court which had decided that the case raised "important constitutional questions". At this point the Irish law should have been reformed to provide for data preservation and include adequate safeguards identified by those cases, such as a requirement for a judge to approve access to data. Instead the law adopted in 2011 was equally flawed.

Alan Shatter and Frances Fitzgerald are equally if not more at fault. It was clear from the Advocate General's opinion in December 2013 that the Data Retention Directive would be struck down. But instead of replacing the 2011 law implementing the Directive both ministers adopted the ostrich position. There has been nothing but radio silence from the Minister for Justice since the Data Retention Directive was invalidated just under a year ago. It may be that she hopes by ignoring the problem it will go away. But by doing so she is only ensuring that many more prosecutions and convictions will be put at risk. As I previously predicted, "by continuing to keep its head in the sand the State is only storing up problems for the future".

Tuesday, March 24, 2015

Mixed internet messages from the Indian Supreme Court

The Indian Supreme Court today gave a landmark decision on the Information Technology Act 2000. Most media coverage has focused on the fact that the court struck down section 66A - the offensive messages provision - finding that it was unconstitutionally vague and would have a chilling effect on freedom of expression. This is significant for the ongoing Irish debate on "cyberbullying". The Irish offence of sending offensive messages by telephone is extremely similar to the Indian s.66A offence and there have been calls to extend it to the internet. Today's judgment suggests that this would be unconstitutional. As the Indian Supreme Court stated:
[The English cases] illustrate how judicially trained minds would find a person guilty or  not guilty depending upon the Judge’s notion of what is “grossly offensive” or “menacing”.  In Collins’ case, both the Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the House of Lords convicted him.  Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen’s Bench acquitted him. If  judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or  “menacing”  are  so  vague  that  there  is  no  manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66A and the authorities who are to  enforce  Section  66A  have  absolutely  no  manageable standard by which  to  book a  person for an offence under Section 66A.
There's been less attention to the court's disappointing findings upholding the section 69A government power to order the blocking of websites where "necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of  any cognizable offence relating to above". According to the court, the procedural safeguards established around blocking were sufficient to protect freedom of expression, despite the fact that blocking is ordered by the government itself rather than an independent body:

It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several  safeguards. First  and foremost,  blocking can only be resorted to where the Central  Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to  some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.

The  Rules  further  provide  for a  hearing  before  the Committee set up - which Committee then looks into whether or not it is necessary to block such information. It is only when the Committee finds that there is such a necessity that a blocking order is made. It is also clear from an examination of Rule 8 that it  is  not  merely  the intermediary  who  may  be  heard. If  the “person” i.e. the originator  is identified he is also to be heard before a blocking order is passed. Above all, it is only after these procedural safeguards are met  that blocking orders are made and in case there is a certified copy of a court order, only then can such blocking order also be made.
Still, it is heartening to see that the Indian Supreme Court apparently considered it essential that both the intermediary and also the "originator" (the person who posts material) should be given the chance to be heard before a blocking order is made. In too many national schemes the only notice - if any - is to the host or social network, not the user.

Thursday, January 22, 2015

Mobile phone records as evidence in Irish courts

Just before Christmas a murder trial collapsed when the prosecution failed to lay the correct evidential basis for admitting mobile phone records against the accused. There's no written judgment but according to media reports:
The State entered a nolle prosequi in the case after Judge Catherine Murphy ruled that telephone records held on a mainframe computer could not be relied on as evidence because there was no evidence that the computer was operating correctly at the relevant time... 
In her ruling at Dublin Circuit Criminal Court Judge Murphy said there must be evidence of the function and operation of the main frame computer, on which the call records are held. She said: “This must include information that the computer was operating correctly at the relevant time”. 
The ruling relies on a 1992 judgement from the UK appeal courts which held that the prosecution must provide evidence of the function and operation of the mainframe computer used to store the records. The Cochrane ruling, which has been upheld by the Irish courts, noted that “the problem of proving transactions of this type must now arise frequently and it should be possible… to devise a standard form of evidence to deal with it.” 
Judge Murphy had earlier ruled that the evidence of the records held on the Meteor mainframe server was not admissible under the 1992 Criminal Evidence Act because the act does not cover automatically held records. 
The evidence in this case was that the records were held, automatically, on the Meteor mainframe server. The prosecution then submitted to the Court that the records could be admitted under Common Law. Judge Murphy ruled against them on this and noted that the UK judgement states there must be evidence “that the computer was operating correctly at the relevant time”. 
The UK judgement states that the prosecution must provide “authoritative evidence about the operation of the relevant machines”. Judge Murphy noted that an engineer from Meteor gave evidence for the prosecution that he had working knowledge of the Meteor computer system but not of the mainframe computer from on the records were held.
Today it seems that another trial has collapsed on the same basis. According to the Irish Times:
The legal argument centred on whether records from mobile phone masts could be relied on to link the phones to the robbery by placing them at relevant times and places. Detectives have developed the network of phones out of a single call allegedly made from the Dublin Mountains to the Richardson family home during the kidnapping. Mrs Richardson testified that the gang had allowed her to call her husband from the mountains. In ruling on the defence application, made in the absence of the jury, Judge Ring said that none of the three mobile phone network experts called by the prosecution could say that the relevant networks were fully operational and functioning on a given day or whether any particular cell sites are out of operation on those relevant dates. She said there was evidence that calls could be routed through another mast if the nearest mast was not operational at the time or if it was busy.
The Cochrane judgment referred to in these reports is R v. Cochrane [1993] Crim LR 98, which was applied in Ireland in relation to mobile phone records by People (DPP) v. Colm Murphy [2005] IECCA 1. It's a little surprising, therefore, that admissibility has become such a contentious issue nearly a decade later. As far as I can tell from the newspaper reports, what has happened is that trial judges have become more familiar with the technology and have become more strict in insisting that the prosecution witnesses can testify to the operation of the system as a whole and not just particular components such as the masts. In the short term this is going to require prosecutors to put forward more technical witnesses from the mobile operators; longer term I wouldn't be surprised to see legislation rushed forward to provide a statutory basis for admitting these records (probably on the basis of certificate evidence).

Incidentally, this is certainly not limited to the case of mobile phone records - the same logic would apply to evidence of IP address allocation and use and other computer evidence. Expect these arguments to be played out soon in other cases involving computers.

Friday, October 24, 2014

Discovery of encrypted documents

Today's Irish Times has a story arising out of the Quinn litigation against the state which raises important issues around access to encrypted documents:
The family of Seán Quinn is demanding access to three letters sent between former minister for finance Brian Lenihan and then chairman of Anglo Irish Bank Donal O’Connor as part its €2.34 billion claim against the state.  This correspondence relates to late January 2009 and early February 2009, just after the state took the decision to nationalise Anglo as it tottered on the brink of collapse. The family also wants efforts to be made to crack a password-protected email sent by the bank’s chief executive David Drumm to Matt Moran, a close lieutenant, in the midst of the financial crisis in April 2008, according to documents filed in relation to their legal battle...

Legal advisers to the liquidators of IBRC, who are now in charge of Anglo, are refusing to release about 168 documents which they claim are legally privileged, with the exception of the email from Mr Drumm to Mr Moran which they cannot access... [The Quinns] have asked the liquidators of IBRC to instruct IT experts to crack the encoded email or give it to the family so that they can try to do so.

I've already looked at the encrypted Anglo files from a criminal law perspective, considering when police can demand that files be decrypted or that individuals hand over passwords. This case presents parallel civil law issues - when can a party in litigation demand that potentially relevant files be decrypted as part of the discovery process, when the other party does not have the relevant passwords?

This will be the first time this is considered by the Irish courts. There doesn't appear to be any case law on the topic, and it's not explicitly addressed in the Rules of the Superior Courts. It's also not considered in the Law Reform Commission's (rather disappointing) 2009 Consultation Paper on Documentary and Electronic Evidence. The closest Irish material is the 2013 Good Practice Guide to Electronic Discovery in Ireland which suggests that parties making discovery should if necessary attempt to break the protection on encrypted or password protected files (PDF, p.23).

I look forward to seeing the decision on this point.

Tuesday, October 21, 2014

Garda body cameras: quis custodiet ipsos custodes?

Garda body worn camera - screencap from Dublin Says No protest video.
I had a piece in Saturday's Irish Independent on the implications of the new Garda body worn cameras being used at protests against water charges. There wasn't enough room in 750 words to tackle all the issues involved so here are some thoughts that didn't make it into the finished piece:

* While there is almost no transparency around the use of the cameras, for the moment it looks as though they are only being used at protests. This is a relatively straightforward case - public protests are the best case scenario for the use of cameras as situations where there is a limited privacy interest on both sides and a likelihood of confrontation - but isn't at all representative of the problems that would be faced if cameras were rolled out to ordinary policing. For example, would cameras be turned off when gardaí are in private homes? In hospitals?

* In particular, there is a real risk that the use of cameras in day to day policing will lead to a more wary relationship with the public. Will people be deterred from talking to gardaí for fear that their casual conversations may be recorded and reviewed?

* The main financial cost lies not in the cameras themselves but in the management of the recordings they generate. Video requires lots of storage and systems in place to deal with transfer of material from device to server, deletion of material once the retention period is up, flagging of particular recordings to be stored, search and retrieval of material which might be spread across a number of different stations, backups and archiving, ensuring that older file formats can still be read, responding to subject access requests, etc. Have these points have been taken into account in garda planning? Or will we end up with another case of garda tapes being stored randomly in cardboard boxes and covered in mould?

* At the moment garda management are saying very little about these new cameras. In a few months the Freedom of Information Act 2014 will be extended to An Garda Síochána - but in the meantime anyone who has been videoed at a protest can find out more by making a (free) request under s.3 of the Data Protection Acts to determine what data from the cameras are being held and the purposes for which they are being kept.

Thursday, October 02, 2014

Watering down data protection

© P L Chadwick CC-BY-SA-2.0.
It was never likely that people would be happy about paying directly for their water. But public resentment has been stoked further by the invasive questions on the Irish Water application forms, which demand PPS numbers for the householder and all children before the free allowances are granted.
That resentment was only exacerbated when people looked at the data protection notice on the website to discover that Irish Water claims the right to use our personal information to market to us via unsolicited text messages, emails, junk mail and telephone calls and even to send salesmen to “contact the customer… in person”.

What do they propose to sell us? The website says that Irish Water or its agents may contact us about “water related products or services”, whatever those might be. Bathtubs? Swimming lessons? Boats? Perhaps we should expect phone calls at dinnertime which begin “Hi there. I’m calling you today because your body is 66% water.”

Irish Water also claims the right to send our information outside of Europe, which would allow outsourcing of their operations (for example, call centres or IT support) to a low cost location such as India. As originally drafted, their website also stated that information would be disclosed if Irish Water was bought by a third party – though they have since deleted this last point, no doubt because it is too close to the political hot potato that is privatisation of the water system.

Are Irish Water entitled to do these things with our information?

Let’s start with PPS numbers. There has been some talk of the criminal offence of requesting a PPS number without legal authority, but that is a red herring: since July Irish Water has been a specified body entitled to use PPS numbers.

However, the fact that they are seeking PPS numbers at all points to a flawed system

For example, Irish Water tell us that they need PPS numbers of children to confirm their eligibility for a water allowance. Yet the Department of Social Protection already holds this information in relation to child benefit. Rather than create an additional bureaucracy within Irish Water it would have been preferable to leave this within the existing state agency – for example, by simply adding the relevant amount to the child benefit payment. This is already being done for the household benefit, which will be increased by an additional €100 each year towards water bills without any need for anyone in Irish Water to know who is on household benefit.

(Using PPS numbers also creates a fresh problem. Many residents in Ireland - such as foreign students and foreign pensioners - will not have PPS numbers. What is to happen to their allowances?)

Quite apart from the initial request for PPS numbers there is also a problem with ongoing storage. While Irish Water may need PPS numbers to verify water allowances initially, that is no reason to continue storing them once this is done. It is a fundamental rule that personal information should not be stored for longer than necessary – especially in cases such as this, where Irish Water would end up holding a vast database which would be vulnerable to both corrupt insiders and outside attackers. Their apparent intention to store PPS numbers in this way is likely to breach data protection law - particularly if Irish Water follow through on what appears to be a half-baked plan to use PPS numbers to track down tenants for non-payment. Such a use would clearly be incompatible with the purpose for which they claim to be collecting the information.

The situation is no better in relation to marketing. For example, the assertion that Irish Water can send us unsolicited text messages and emails unless we object is wrong. Positive, opt-in consent is required by law before this can be done. Similarly, Irish Water is lacking in the mechanisms it provides to opt-out of marketing. The website makes opt-out excessively difficult by providing only a postal address and telephone number and (because it is not a freephone number) violating the requirement that opt-out should be free of charge. Indeed, it has since emerged that Irish Water staff answering that telephone number are actually unable to register opt-outs in the way promised by the privacy statement.

In relation to transferring our information outside Europe, Irish Water fails again. The website claims that “by submitting data to Irish Water” you agree to such transfers. However the fiction that you consent by filling out the registration form is unsustainable – as Irish Water is a monopoly and there is no choice but to fill out the form then any supposed consent would not be “freely given” as required by European law. Any transfer outside Europe would have to be justified in some other way.

The beleaguered head of PR has appeared on Morning Ireland attempting to extricate Irish Water from this quagmire - stating for example that Irish Water would only be direct marketing via postal inserts with bills, not by phone calls or emails. However her ad hoc assurances are meaningless while the data protection statement still claims much wider rights.

These are fundamental failures to meet basic requirements of data protection law and have already resulted in one change to the privacy statement. The Data Protection Commissioner is now also involved, and it is safe to say that her office will also insist on further changes. However it is astonishing that it is only at this late stage that the privacy issues involved are being given the attention which should have been there from the start.

For more see this excellent series of posts from Daragh O'Brien, who has been on top of the issue from the start: 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10.

Tuesday, September 16, 2014

United States v. Microsoft (and Ireland)

I have a short piece in today's Irish Independent on the remarkable legal battle between Microsoft and US prosecutors over access to data on non-US users which is stored in Ireland, which has now resulted in a finding that Microsoft is in contempt of court.

The Irish Independent doesn't allow inline links to resources in stories, so for background here are:
In the piece I suggest that Microsoft might commit a criminal offence under Irish law if it discloses user emails without an Irish court order or other Irish law entitlement to do so. The relevant provision is section 21(2) of the Data Protection Acts which makes it an offence for any data processor to knowingly disclose personal data without the prior authority of the data controller on whose behalf the data were processed.

This does, of course, assume that Microsoft would be a data processor rather than a data controller in respect of the contents of user emails. While there is some debate as to when a cloud service operator should be treated as a data controller rather than a data processor, guidance from the Article 29 Working Party (Opinion 1/2010 on the concepts of "controller" and "processor", p.11) strongly suggests that Microsoft should be treated as a data controller only in relation to content (such as traffic data) which it generates - in relation to the emails themselves Microsoft would be treated as a data processor and would therefore be exposed to criminal liability.