Wednesday, August 29, 2007

"The New Surveillance" in Ireland

I've written a short piece for the Irish Security Industry Association's Risk Manager magazine about "The New Surveillance" and its growth in Ireland:
The recent trial of Joe O’Reilly for the murder of his wife Rachel attracted huge public interest for a number of reasons – the gruesome nature of the crime and the demeanour of the killer among them. But another cause of this public attention was the way in which the trial revealed the extensive digital footprints we leave behind in our day to day activities. In a first for the Irish courts, the prosecution case was built for the most part on digital evidence – including CCTV footage, mobile phone location data, details of calls and text messages and the content of emails.

Though this was the first case to attract such attention, in the background there has been a move towards greater surveillance of everyday life for some time now. For example: since 2002 Irish law has required that telephone companies log details of every telephone call made, every text message sent, and the movements of every mobile phone and that they store that information for three years. European law will extend this to the internet, requiring ISPs to log details of users’ emails, instant messages and web use. Recent legislation has permitted the random breath testing of drivers as well as random drug testing of employees. Within the last month alone Government plans were announced to roll out extensive CCTV schemes to sixteen additional towns, to introduce a national DNA database, to introduce mandatory registration of pre-pay mobile phones, and to introduce automatic number plate recognition systems which will automatically scan all passing cars to see whether they are reported stolen or untaxed.

What do these developments have in common? US academic Gary Marx has described them as “the new surveillance”. Traditionally we might think of surveillance as being something which is unusual or uncommon, carried out by the State, targeted towards a particular individual or group, labour intensive (and thus expensive), and focused on solving or preventing a particular crime. Technological developments (making surveillance easier and cheaper) and changes in social norms (including greater acquiescence to being monitored) have now turned this on its head.

The new surveillance is pervasive – far from being unusual surveillance has become the norm. It is not necessarily carried out by the State – for example, the obligation to track mobile phone users has been effectively outsourced to the mobile phone companies. This, along with increased automation, means that the cost to the State of surveillance can be minimised, doing away with any incentive to restrict surveillance to those situations where it is essential. It is untargeted – in the new surveillance every driver, web user, mobile phone user or pedestrian passing a CCTV camera is scrutinised as though they were a suspect and irrespective of whether any crime has been or is likely to be committed. The new surveillance is also largely invisible, allowing it to fly under the radar of public inspection and concern.

Should this concern us? The underlying technology is neutral in itself – for example, CCTV can be used to prosecute crime or (as in a recent English case) it can be used by its operators to spy on a woman through her bedroom and bathroom window. What matters is the use to which it is put and the legal controls which are in place. At an absolute minimum we should ensure that surveillance is democratically approved; that it is proportionate (going no further than necessary for a particular purpose); that information gained from surveillance be retained for the minimum period necessary; that it be subject to adequate independent oversight; and that sanctions should be in place for individuals or operators who violate these controls.

Unfortunately, Irish law generally fails these requirements. In 1996 the Law Reform Commission identified a range of deficiencies in Irish law on surveillance and over ten years on those problems remain unaddressed. Instead, official surveillance and technology have developed in what is often a legal vacuum. For example, there is no law governing the interception of emails, no law providing for criminal sanctions for the misuse of CCTV systems and no effective oversight of police surveillance. In short, the new surveillance has not been matched by new legal controls, which must raise doubts as to whether many aspects of the new surveillance are compatible with the right to privacy under the Constitution and under the European Convention on Human Rights.
PDF version here.


  1. TJ, The recent cases of Braddish and Dunne are most interesting with respect to convictions that were unsafe and recordings that were lost and indeed establishing a duty, per Hardiman J., on An Garda Siochana to seek out and preserve CCTV evidence. These cases are available on Of course the cases of Connolly and Diver are exemplary with respect to admission of video recording equipment/evidence and duty to avail of and utilise video under custody. RL.

    Braddish v. DPP IESC

    Dunne v. DPP IESC

    Diver v. DPP (Worth a read)

  2. Comment 2. Don't we all already know that R v. Chaulk and the Doctrine of Proportionality is a judicial hook on which to hang infractions of constitutional rights!? The first part of the test is often not cited in many contemporaneous judgements [It says more or less, here goes, we will infringe a right]. Heaney v. Ireland contains it correctly per Costello, J. Subsequent judgements are remiss in only stating the second part of the test: Glencar v. Mayo Co. Co., In re. Article 26 of the Health Amendment Bill 2005 and Planning and Development Bill Part V, 2000. The cases of Hempenstall and Gorman v. Minister for the Environment are useful to see the 'diet' application of the doctrine [Taxi and Hackney cases].

    So one might ask whether its better to plead for incompatibility under the ECHR in the first instance, [Grace v. Ireland] or is that also a complete waste of time? More case law would appear to exist in defence of rights, Copland v. UK, Klass v. Germany etc. Plaintiffs might also be able to get some ex gratia payments from the government.

    I find it amazing that we can vindicate the constitutional rights of total scrotes, yet we find it burdensome to move towards rights based adjudication. See also, Charleton J. in Doherty v. Dunlaoghaire Rathdown Co Co. [Non-justiciability].

  3. Those are good points re the use of CCTV in other cases and I completely agree that it's not a new phenomenon. Mobile phone location records were also used before in DPP v. Murphy [2005] IE CCA 1. What I would suggest is different about the O'Reilly case is the way in which ubiquitous surveillance gave us, for the first time in Ireland, a prosecution case based entirely on electronic evidence entirely unsupported by traditional eyewitness or forensic evidence.

  4. I have just returned from hols in Italy where on seeking to access the Internet at an Internet cafe I was informed that I had to first produce my passport!!