Illegally obtained digital evidence: Mind your Ps and Qs

"While the law provides for court orders to be made for the preservation and obtaining of evidence for the purpose of future legal proceedings, claimants, or potential claimants, sometimes resort to measures of self help, by copying, seizing, or attempting to access digital copies of documents" - Tugendhat J. in L v. L. (2007)

Those words from the English High Court are equally true in Ireland. Particularly in family law cases it can be very easy for a litigant to (illegally) access the laptop, webmail or other electronic information of the other side to collect ammunition for use at trial. This presents interesting legal issues as to when such evidence will be admissible, despite the way in which it was obtained.

The High Court gave a recent judgment in the family law case P v. Q [2012] IEHC 593 which offers some guidance. In this case the applicant (the husband) sought a judicial separation and attempted to introduce evidence relating to the respondent's (wife's) sexual activities since the breakup of their marriage, including details of material on her laptop and posted by her to certain websites. The respondent gave evidence that the passwords for her laptop and the access codes for the sites were kept in a locked safe which the applicant must have accessed illegally. Consequently she sought to ensure that the information obtained by the applicant was not used in the proceedings and in particular was not used as the basis to obtain an order for discovery against her.

On appeal from the Circuit Court, the High Court held that in the ordinary course of events this information would be inadmissible on the basis that it was obtained illegally and in breach of the constitutional right to privacy of the respondent. In this case, however, given that child welfare issues also arose the court took the view that the constitutional rights of the child took precedence over the manner in which the evidence was obtained so that the information could be admitted in relation to the child welfare issues only. The relevant parts of the judgment are at para. 33 onwards:

33. The issue for the court to determine is complicated by the allegation that the respondent’s privacy was breached illegally when the codes and passwords of her personal laptop were accessed, at a time subsequent to the commencement of family law proceedings Although disputed by the applicant, the evidence before this court heard on affidavit would indicate that the passwords and access codes to these particular websites were retained by the respondent in a locked safe. There are many occasions and opportunities in family law proceedings, where parties to the proceedings access information which the other party regards as private, but which has not been obtained illegally. In this case the acquisition of the codes is tainted by illegality.

34. I accept the submissions on behalf of the respondent, that there is a broad principle of constitutional law, that evidence which is obtained by invasion of a constitutional personal right such as a right of privacy must be excluded unless the Court is satisfied that the breach was committed unintentionally or accidentally (which could not be the case here) or is satisfied that there were extraordinary excusing circumstances which justify the admission of the evidence in its discretion”. It is respectfully submitted that there are no extraordinary excusing circumstances in this appeal. I would accept that principle as applying to a criminal prosecution, in order to protect the absolute right to a fair trial.

35. Where different constitutional rights have to be balanced, different principles apply.

36. A court should always be reluctant to admit evidence or approve discovery, which is tainted with illegality, but that is not to say that on all occasions where illegality is suspected or found, that the evidence so obtained is not admissible. This is particularly so when dealing with the welfare of a child.

37. If the court were only dealing with issues between the parties and not the welfare of the child, the court would have taken into consideration the sexual history of the marriage, and on balance would not make the order for discovery sought..

39. The alleged sexual activity of the respondent has a direct bearing on the welfare of the child of the marriage...

41. While the proceedings touching on the welfare of the child are adversarial in nature, there is an inquisitorial aspect to that portion of the proceedings dealing with his custody. Balancing the different constitutional rights and responsibilities the welfare of the child would take precedence over illegally gathered information touching on the child’s welfare.

42. In addition the constitutional right to privacy of the respondent is protected in “in camera” proceedings, as the information disclosed is confined to the parties, their legal representatives and the court. The respondent’s rights can be further protected by the addition of further conditions.

43. The court affirms the order of the Circuit Court with the following additional conditions:-

(1) The material furnished can only be used for the purposes of determining the welfare of the child of the marriage and not for the purposes of s. 16(2)(i) of the Act in respect of the behaviour of the respondent.
(2) Any material discovered which does not impinge on the child’s welfare, should be furnished but returned to the respondent, and not relied on by the court.
(3) In the event of any dispute the presiding judge of the Circuit Court should consider the material and decide on relevance

While this decision allowed the use of this information on the particular facts of the case for a limited purpose, overall it adopts an approach which will mean that in most future cases such evidence will be inadmissible. The judgment isn't entirely clear on the distinction between illegally and unconstitutionally obtained evidence but appears to accept the proposition that wrongful access to a laptop or an online account will amount to an invasion of the constitutional right to privacy - not merely an illegality. In this, it extends the principle previously established in PMcG v. AF in relation to hardcopy (a diary in that case) to digital information also.

Impact of the Criminal Justice Act 2011 on cybercrime law

One of the most important recent developments in Irish criminal law has been the enactment of the Criminal Justice Act 2011 which makes substantial changes to both the substantive and procedural law surrounding offences of dishonesty and "white collar crime" (previously). While the 2011 Act is of very wide application, it has particular significance for computer crime where it creates both duties to report certain types of crime and new police powers to require the handing over of passwords and decryption of files.

Pearse Ryan and Claire O'Brien of Arthur Cox and Andy Harbison of Grant Thornton have produced a very good guide to the effect of the 2011 Act for the Society of Computers and Law (paywalled) and with their kind permission I'm glad to be able to host a copy here:

Cybercrime in Ireland – Recent Legislative Developments

The Criminal Justice Act 2011 (the “2011 Act”) came into effect on 9th August 2011 and was enacted with the aim of granting An Garda Síochána (the Irish national police service) more extensive powers to investigate “serious and complex offences”. (1) The main areas which the 2011 Act deals with are the supply of information at investigation, detention, questioning and the summoning of witnesses.  Much attention has focused on the 2011 Act as a tool in the fight against white collar crime, a topic of much interest since Ireland’s economic crisis.  In the press statement released by the Minister for Justice, Equality and Defence, Mr Alan Shatter, it was stated that the 2011 Act is “an important step in delivering on the Government’s strong commitment to tackle white collar crime as set out in the Programme for Government”.(2)

This article focuses on the 2011 Act as a tool in the fight against cybercrime, a specific sub-species of white collar crime.  While cybercrime may not pose the same threat to national economic well-being as some of the criminal acts, the investigation and accordingly the prosecution of which the 2011 Act was intended to assist, with particular reference to the financial services sector, cybercrime is a material and ever increasing area of criminal activity.  Also, it is an area in which the Gardaí were previously severely hampered in their ability to investigate, with a knock-on effect on prosecutions.

This article follows on from an earlier article entitled ‘Computer Fraud in Ireland’.(3)  

Purpose of 2011 Act

The problems which the 2011 Act attempts to tackle are problems which potentially both significant delay and potentially hamper the investigation and prosecution of white collar crime.  Cybercrime in particular, is frequently orchestrated on a large if not massive scale and in an increasingly complex manner, as technology develops at a rapidly increasing pace. 

The level of resources deployed by organisations to secure their IT systems has increased substantially in recent years.  Correspondingly, the level of technical sophistication necessary to establish a breach in most organisations’ IT networks, and particularly those in the financial services industry, has also had to increase.  Organisations’ cyber-defences now typically take a lot more effort and wherewithal to breach.  Now, more than ever to become a success in cybercrime it is necessary to be intelligent, patient, innovative and well resourced, none of which are characteristics typical of most criminals.  Cybercrime, or at least those areas of it that are more than computerised petty theft, therefore falls increasingly within the domain of organised criminals.(4) 

National authorities responsible for investigation of all forms of cybercrime are almost invariably at a technological disadvantage, as the criminals make the running.  The 2011 Act attempts to go some way towards lessening delays which hamper the investigative process.  

Scope of 2011 Act

Section 3(1) of the 2011 Act brings a number of relevant offences within its ambit, among them Section 9 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (the “2001 Act”) and Sections 2, 3 and 4 of the Criminal Damage Act 1991 (the “1991 Act”).  These offences are summarised below, but are discussed in some detail in the previous article referenced above.

Additionally, Section 3(2) provides that the Minister may, by order, specify as a relevant offence, any arrestable offence relating to criminal acts involving the use of electronic communication networks and information systems or against such networks or systems or both, if the Minister is of the opinion that the nature of the offence is such that it would benefit from the powers conferred on the authorities in the 2011 Act, due to, for example, the complexity of transactions involved and the prolonged period of time usually required for investigation.  It remains to be seen whether any such offences will be specified pursuant to Section 3(2). 

Section 3(2) appears to be a recognition that the 1991 Act and 2001 Act were rendered effectively obsolete by technological innovations quickly after being passed.  Nevertheless, it does not solve the problem that an offence has to be rendered arrestable before it can also be designated as reportable, a problem when Irish authorities have historically had difficulty keeping up with the apparently boundless imaginations of cyber criminals when applied to developing new varieties of IT fraud and cybercrime.

Sections 2 and 3 of the 1991 Act respectively create the offences of damage to, and threat of damage to, property, including damage with an intention to defraud.  Section 4 of the 1991 Act created the offence of possessing anything with intent to damage property with a similar intention to defraud another.   Section 9 of the 2001 Act relates to the dishonest operation of a computer whether within or outside the State with the intention of making a gain, or of causing loss to another. 

It is notable that Section 5 of the 1991 Act remains outside of the remit of the 2011 Act.  Section 5 is a computer-specific offence and deals with persons who, without lawful excuse, operate a computer within the State with intent to access any data kept either within or outside the State, or outside the State with intent to access any data kept within the State, whether or not any data is actually accessed.  Given the specific acknowledgements in the 2011 Act of the role played by technology in serious and complex offences, it is surprising that Section 5, with its obvious focus on hacking and data security has been excluded from its application.  It is possible that the drafters of the 2011 Act doubted the ability of citizens to reliably and accurately identify the kind of offences covered under Section 5 of the 2001 Act, which would render any legal obligation to report such offences excessively onerous.  Hacking offences can be difficult to identify where the perpetrators intention was to remain undetected, which is frequently the case and particularly with more sophisticated hacking.  It might also be noted that resource allocation to the Gardai’s Computer Crime Investigation Unit have failed to keep up with growth rates in IT usage over recent years.  An obligation to report computer offences would thus not necessarily be reflected in an increase in investigative activity.

Key Provisions of 2011 Act

Under Section 15 of the 2011 Act a member of the Garda Síochána may apply to a judge of the District Court for an order to make available particular documents or described documents available or to give information for the purposes of the investigation of a relevant offence.  In the case of documents being handed over under this section which are illegible or inaccessible, the court order may also stipulate that any relevant access or passwords be given.  Failure to provide passwords can be punished by a fine or prison term of up to 12 months on summary conviction or 2 years on indictment. 

Requiring passwords is a significant power, given that without the key the lock remains unopened.  Investigation of cybercrime offences can clearly be substantially frustrated by the lack of access to encrypted documents, as demonstrated, for example, in recent Garda investigations at Anglo Irish Bank.(5)  This section provides the Gardai with considerable additional leverage.  The 2001 Act only allowed for penalty of IR£500 or 6 months for failure to disclose passwords and as far as we are aware these penalties were never imposed.

The Superior Courts in Ireland have on occasion in recent years issued Anton Pillar Orders and other civil warrants which required individuals to disclose passwords to representatives of Civil plaintiffs, under threat of being held in contempt and summarily jailed.  In practice this has meant that private persons have potentially had more scope to force other parties to disclose their password than have the police.  A fact of necessary concern to Gardai.

Section 16 deals with the assertion of privilege over documents which fall subject to an application under Section 15 and allows for the Garda Síochána to apply for a determination as to whether privilege can be claimed, which application may be made in camera.  This provision will be of benefit in the context of the speed at which cybercrime offences can become opaque and tackles a significant area of delay in criminal prosecution. 

Section 18 of the 2011 Act allows for certain reasonable presumptions to be made in the context of the Criminal Evidence Act 1992 in relation to the authorship or exchange of documents by virtue of the circumstances in which the document is found or purports to be exchanged.  In IT forensics, it is typically relatively straightforward for expert investigators to establish that actions were carried out on a computer by persons using a particular user account or other privileges.  It has historically been far more difficult to link specific individuals with user accounts – to place their hands on the keyboard.  The new provision allows the Courts to assume that the individual in possession of a certain set of user credentials was the same person who carried out any acts on the computer using those credentials.  It is up to the defence to demonstrate that others might have been able to use the same credentials to carry out a crime.  These provisions will be of particular relevance to the use of electronic documents in the course of investigation and the use of evidence in criminal trials. 

Under Section 19(1) of the 2011 Act it is an offence for a person to withhold information which they believe might be of material assistance in preventing the commission by another person of a relevant offence or securing the apprehension, prosecution or conviction of any person for a relevant offence and the person fails without reasonable excuse to disclose the information to the Gardaí.  This offence attracts a penalty of a class A fine (maximum €5,000) and/or 12 months imprisonment on summary conviction and an unlimited fine and/or imprisonment not exceeding a period of five years on conviction on indictment.  The Gardaí may arrest and detain, for up to 24 hours, an individual without a warrant if they are suspected of withholding information.(6)  

It is our understanding that this obligation may apply retrospectively so that, in theory, matters that individuals and organisations might have thought long closed should be reported to the Gardai regardless.  This is an area of concern amongst those likely obliged to report offences, although not an area that has attracted much public comment.

Section 19 is the provision of the 2011 Act which has attracted most attention within the public and private sectors.  This provision represents a clarification in the law, creating for the first time a specific obligation to report relevant information to the authorities.  While this provides obvious advantages for the Garda Síochána in investigation of serious crime, it has caused a degree of concern to public and private sector organisations, who may now be guilty of an offence if they fail to report information covered by the provision.  This could potentially apply in circumstances of omission by default, where the organisation may not be actively aware that relevant information is in their possession.  While it is assumed that the normal rules in relation to knowledge and possession of evidence, together with normal Gardai operational practice and procedure, will apply in the application of this Section, there is an element of doubt here which is a cause for concern amongst public and private sector organisations who may be have suffered cybercrime, together with third parties, such as IT security or forensics consultants brought in to investigate technical aspects of an incident, which may take some time to be identified as a crime.  This Section was introduced to solve a perceived problem, but the tariffs applicable to the new offence in particular have caused disquiet amongst those under an obligation to report.

It should be noted that Section 19 has essentially reinstated the offence of Misprision, which had been removed from Irish law by the Criminal Law Act 1997(7), for all but terrorist offences.(8)  Misprision was formerly a common law misdemeanour committed by a person who knew that a felony had been committed but did not give information which could lead to the felon’s arrest.(9)  Minister Shatter stated at the Second Stage reading of the 2011 Act, in relation to Section 19, that “this particular offence is of major importance, as its creation in the Bill will ensure that those who become aware of persons engaging in white collar crime are under an obligation to bring what they know to the attention of the Garda Síochána” .(10)

One provision the 2011 Act does not include is any allowance to provide additional resources to the Gardai to investigate the offences which it is intended be reported to them under its provisions.  Nor has the Government allocated any additional resources to the Garda Bureau of Fraud Investigation or to the Garda Computer Crime Unit in response to this new legislation.  As a consequence it appears the main effect of the Act may be to deluge the law enforcement authorities with reports of possible offences without providing them any means to investigate them.  It is therefore very much an open question whether in this regard the 2011 Act is anything more than a ‘paper tiger’.

2011 Act Overview and Summary

The 2011 Act introduces a wide arsenal of powers aimed at aiding the investigation of serious offences which in the context of cybercrime are generally long overdue and are to be welcomed.  The quite serious tariffs applicable under Section19 have been less welcomed by those likely to suffer cybercrime as well as the IT forensics sector, who may be ones who discover the crime. 

While the 2011 Act incorporates approximately 130 offences into its remit, one significant omission is reference to Section 5 of the 1991 Act, which relates to unauthorised use of a computer with intent to access data, which was intended to deal with hacking.  The reason for this omission is assumed to be attributed to the same logic which associates the offence under the 1991 Act with damage to property and applies comparatively small tariffs.  Under the 1991 Act a general offence relating to damage to property is stated, with property defined to include data.  This is thus a fairly basic cybercrime related offence.  Notwithstanding, the relative merits of Section 5 of the 1991 Act, by omitting reference to it the 2011 Act has disregarded one of the main types of cybercrime offence, namely hacking (albeit a particular type of hacking) that the new broad powers of investigation would seem to have been intended to tackle. 

Significant steps have been taken by the 2011 Act to make inroads on issues which hamper the effective investigation of complex and technical crimes.  This is welcome.  However, overall the law applicable to substantive cybercrime offences, as set out in the 1991 Act and 2001 Act, requires significant revision, to update what are by now elderly offences.  Without a more focused and sophisticated legislative framework cybercrime will remain an area where the law lags behind the crime. 

Pearse Ryan is a partner in the Technology & Life Sciences Group at Arthur Cox, Dublin, specialising in IT, outsourcing, cloud computing and IT security issues.  Claire O’Brien is a trainee solicitor in the Technology & Life Sciences Group at Arthur Cox, Dublin.

Andy Harbison is a Director – IT Forensic Lead, Forensic & Investigation Services, at Grant Thornton, Dublin, specialising in computer forensics and electronic discovery.

Pearse and Andrew wish to express their thanks to Claire for her valuable contribution to this article.

Footnotes:

1.   Criminal Justice Bill 2011 Second Stage Speech (Dáil) on Wednesday, 18 May 2011Minister for Justice, Equality and Defence, Mr Alan Shatter, T.D.
2.   Press release of the Minister for Justice, Equality and Defence, Mr Alan Shatter T.D http://www.justice.ie/en/JELR/Pages/CrimJustBill2011_PR
3.   Article published by the Society for Computers & Law, available at: http://www.scl.org/site.aspx?i=ed16653.  Also available at:  http://www.arthurcox.com/who-we-are/our-people/pearse-ryan.html
4.   For example, 21/12/12 story entitled ‘Facebook helps FBI take down $850m cyber-gang’, available at: http://www.finextra.com/News/FullStory.aspx?newsitemid=24372
5.   See: http://www.independent.ie/national-news/anglo-chiefs-facing-quiz-on-missing-passwords-2413749.html
6.   For a general discussion of S19 see:  http://www.arthurcox.com/uploadedFiles/Publications/Publication_List/Arthur%20Cox%20-%20The%20Criminal%20Justice%20Act%202011,%20September%202011.pdf
7.   In this Act, Section 3 abolishes the distinction between felony and misdemeanour, thereby abolishing the felony of misprision.
8.   Section 9 of the Offences Against the State Act, 1998 creates an offence similar to misprision.  In this section it is an offence to withhold information which a person knows or believes might be of material assistance in preventing the commission of a serious offence or securing the apprehension  prosecution or conviction of any other person for a serious offence,
9.   See for example Sykes v. DPP [1961] 3 All ER.
10.   http://debates.oireachtas.ie/dail/2011/05/18/00025.asp

Government locked itself in Dáil and wont come out until Internet stops laughing at them, says spokesperson

Best commentary so far on the Irish social media debate. Here's an excerpt:

TD’s are said to be currently staging a sit in, making this the first time in 20 years all 166 members have been in the building at the one time.
In a statement issued earlier, Justice Minister Alan Shatter said the government has had enough of ‘Internet bullies’ poking fun at politicians.
‘Its not fair that everyone is laughing at us all the time and posting funny pictures.’ read a spokesperson. ‘The government has decided to put a stop to this and stage a sit-in from 9am – 11am, before breaking for a three hour lunch break. The sit-in will commence shortly after 2pm and finish for the day at 3.’

Legislation is not the answer to abuse on social media

I had an opinion piece in last week's Sunday Business Post in response to the latest Irish panic about the internet. As it's behind a paywall the full text (with added links) is below:
 
Legislation is not the answer to abuse on social media

Earlier this week the Chinese government passed a measure requiring all internet users to register their real names. The official line has been that the law is to "safeguard the lawful rights and interests of citizens" and "social and public interests", but Chinese bloggers have been in no doubt that it is a response to growing use of the internet to expose official abuses. It's disappointing, therefore, that some within the Irish government seem to be considering a similar approach.

The background is the suicide of TD Shane McEntee. Some members of his family and politicians have said that "abuse" directed towards him on social media over cuts to the respite care grant had caused him great stress. Social media abuse has also been linked to other recent suicides, though politicians need to be careful not to over-simplify the complex causes behind someone deciding to take their own life.

A number of politicians have now called for regulation of social media and the Oireachtas Committee on Transport and Communications has scheduled a special meeting for January to look into the issue with its chairman, Tom Hayes, saying that "people have to be made accountable for what they are saying".

Kneejerk calls for "regulation" ignore the reality that social media is already regulated in the sense that the law applies online as it does offline. Where defamatory comments are made online then a defamation action can be brought in the same way as though those comments were made in a telephone call or letter.

The criminal law applies in the same way --- in particular, the offence of harassment contrary to the Non-Fatal Offences Against the Person Act 1997 has already been used to prosecute online activity. In each case, whether civil or criminal, there are already mechanisms to permit the identification of internet users accused of serious wrongdoing.

Given these existing laws, when politicians call for people to be made "accountable" then either they are unaware of the current mechanisms to deal with breaches of the law or they have something else in mind, some new form of regulation which would restrict speech online to a greater extent than offline.

There are, so far, no concrete proposals on the table, but there is already hostility among Irish politicians to the ability which the internet gives users to speak freely. Ruairi Quinn earlier this year, for example, described the internet as "a playground for anonymous back-stabbers". Consequently, one particular issue that is likely to be floated is that of requiring some form of real name registration for internet users.

The proponents of real name laws invariably make the same point -- that online discussions would be more civil if individuals spoke under their own names. There is a superficial appeal to this argument even if politicians themselves show that the contrary is often the case. Our politicians are never slow to attack each other in the most abusive of ways, but this does not attract the same political condemnation as similar remarks made on social media by ordinary citizens.

There are, however, very fundamental problems with real name laws. Fortunately there is international experience to show why this is. In 2007, South Korea adopted a real name verification law under which websites with more than 100,000 visitors a day were required to record the full identity of visitors posting comments using their resident registration number --- the equivalent to the Irish PPS number. Though users could still use pseudonyms on these sites, the theory was that their true identities could be revealed in the case of wrongdoing.

In a striking parallel with the current Irish situation, this law was partly prompted by suicides of celebrities said to have been the victims of cyber-bullying.

How did this experiment fare? In short, it was a disaster. It was trivially easy to evade --- users could simply move to overseas websites, making it harder rather than easier to enforce the law, while also harming the local internet industry.

It created multiple poorly-secured databases of user identities, which led to South Korea becoming one of the countries most affected by privacy breaches and identity theft.

Most importantly, it led to a chilling effect whereby citizens were deterred from speaking out online for fear of retribution. In 2011, the government announced plans to abandon the law and in August of this year the Constitutional Court unanimously ruled it to be unconstitutional, holding that it disproportionately restricted freedom of expression and did not achieve any public benefit.

In particular, the court found that "there is no evidence that the real name system has significantly reduced the defamatory or otherwise wrongful posting of messages".

The journalist HL Mencken is credited with the expression: "For every complex problem, there is an answer that is clear, simple--- and wrong." In the case of social media, real name legislation is precisely that. True, there are wider issues with civility in social media --- just as there are with civility in public discourse generally.

It also doesn't help that Irish politicians have yet to come to terms with how social media amplifies public opinion, debate and interaction, so that they can sometimes experience the active citizenry which it enables as a relentless flow of criticism.

These, however, are overwhelmingly issues of manners and social norms --- not matters for legislation. The few cases which are genuinely defamatory or criminal can be referred to the legal process, but the remainder are best dealt with by continued conversation, education and self-moderation by online communities.

Cloud surveillance in Ireland: coming soon to a server near you?

There's an excellent article by Peter Swire in the current International Data Privacy Law journal titled "From real-time intercepts to stored records: why encryption drives the government to seek access to the cloud". The core argument is relatively familiar though particularly well articulated - with the move away from conventional telephony and towards the use of VOIP, webmail and encrypted web connections over SSL there are growing problems for national governments in using traditional surveillance powers. Instead governments are increasingly attempting to access stored communications after the fact, where these are held in cloud services.

An important implication is that this divides up countries into "haves" (where cloud services are based and can be compelled to cooperate) and "have nots" (who will lack leverage over foreign companies). Consequently, as he puts it:

the 'have nots' become increasingly dependent, for access to communications, on cooperation from the 'have' jurisdictions... This technical possibility to respond to process leads to an important, specific split between the ‘haves’ and ‘have nots’. Some jurisdictions will have the cloud server in their jurisdiction, with relatively straightforward access to the stored records under local law. Other jurisdictions will not have such access. They will have to use a Mutual Legal Assistance Treaty (MLAT) or other mechanism to gain access to the holder of the records. These ‘have not’ jurisdictions may well face added expense and delay in gaining access to the records. In some (or perhaps many) cases they will not be able to access records that they consider important for law enforcement or national security purposes. Conversely, cloud providers and other holders of records are likely to face an increasing number of lawful access requests, from a potentially bewildering array of jurisdictions.

So what does this mean for Ireland? Think about these recent headlines: "Dropbox to establish Irish office", "Twitter ramps up hiring in Dublin", "Facebook is liking Ireland more and more". Add Google and other companies with Dublin HQs and suddenly Ireland becomes - in Swire's analysis - one of the "have" jurisdictions when it comes to internet surveillance.* Better yet, it's a jurisdiction with antiquated laws on surveillance, where oversight of police activities continues to be inadequate. Consequently we can expect both domestic and international interest in accessing the contents of these cloud services - with the added advantage that the out of date Irish law might allow the more stringent requirements of US law to be evaded in the case of providers with their main base in the US. Watch this space.

--

*There is one possible caveat - some US providers appear to be basing only e.g. sales and marketing functions here, leaving actual data hosting in the hands of a different (US) corporate entity and therefore theoretically outside the scope of the Irish authorities. It remains to be seen though whether this will be effective.

Voyeurism as harassment

There's an case reported in today's Irish Independent about a man convicted of hiding a camera in the shower of a women's locker room. In the absence of a voyeurism offence in Irish law he was charged with harassment contrary to s.10 of the Non Fatal Offences Against the Person Act 1997. This isn't the first of these cases and a practice has developed of using the 1997 Act in these circumstances. At first glance this might seem to be a good fit - the definition of harassment does after all cover situations where a person by "watching" another person thereby "seriously interferes with the other's peace and privacy". However, it seems to me that s.10 isn't a substitute for a dedicated voyeurism crime along the lines of the English offence. In particular, the section is aimed at overt harassment and requires that the harassment be carried out "persistently". Once-off incidents - including once-off cases of voyeurism - wouldn't be covered on this basis.

Irish mobile phone companies: still spammy

Last year, following a complaint to the Data Protection Commissioner, I finally received an apology from Carphone Warehouse for multiple spam text messages sent to my phone. It seems that they didn't get the message then. From today's Irish Times:

Carphone Warehouse was fined €1,250 on each of two charges relating to the sending of an unsolicited email marketing messages. The court heard the company had previously been warned in relation to similar breaches, although it had no previous convictions.

Meteor was also prosecuted over the sending of an unsolicited marketing email. The customer who complained to the Data Protection Commissioner had previously gone to "some lengths" to ensure he would not be contacted by the company, the court heard. While the customer was the only one who complained, the message had been sent to between 11,000 and 18,500 people who should not have received it, the court heard. Counsel for the Data Protection Commissioner agreed that while Meteor had no previous convictions for such offences, it had previously had the benefit of the Probation Act. Judge O'Neill said that if the company paid €5,000 to Temple Street children's hospital by December 17th, he would strike out the charge. If the money was not paid by that date he would convict and impose a fine of €5,000.

Hutchison 3G, trading as Three, was prosecuted on three counts - one of sending an unsolicited email, one in relation to an unsolicited phone call, and a third in relation to an unsolicited marketing text message sent to deputy data protection commissioner Gary Davis.

Judge O'Neill asked the company to pay €2,500 to Crumlin children's hospital by December 17th. He said if such payment was made he would strike out the charge. He took two of the three charges into account.

Pro tip: if you're going to spam, try not to spam the Data Protection Commissioner's Director of Investigations.

Of hyperbole and credulous journalism

According to an uncritical report in the Irish Times today a court case will have "significant ramifications for Irish society". SiliconRepublic agrees that the case is "significant" and will "send shivers down the spine" of internet users. So what was this latter day Donoghue v. Stevenson of such great importance?

It turns out that it was a run of the mill application to the High Court to identify internet users. These are reasonably common in the Irish courts. The first came in 2005 when the music industry sought to identify filesharers. Since then there have been multiple such applications including several other filesharing cases, a very high profile action by the Red Cross against a whistleblower and one by Ryanair against pilots. This year alone applications were brought to identify internet users by a student wrongly accused of dodging a taxi fare and by solicitor Damien Tansey against the operators of the Rate Your Solicitor website.

This is far from being a full list - these are just the most high profile examples - and this is certainly not any sort of new area of law.

So why the hyperbole in the current stories? Both pieces quote the solicitor responsible for the action, and it's entirely understandable that he might seek to talk up the significance of the case. But journalists should know better than to accept self-serving claims at face value.

High Court confirms standard of review in data protection appeals

The recent decision in Nowak v. Data Protection Commissioner will be essential reading for all data protection practitioners as in it the High Court finally confirms the test to be used in hearing appeals against decisions of the Data Protection Commissioner, along with providing some interesting observations regarding examination scripts as personal data and the meaning of "frivolous and vexatious" complaints to the DPC.

Under s.26 of the Data Protection Acts 1988 and 2003 there is a general right of appeal to the Circuit Court against decisions of the DPC - that section does not, however, specify the standard which the court should take in hearing appeals. In particular, it left open the question of whether an appeal should be treated as a full rehearing of the matter, an appeal on the merits, an appeal limited to a point of law, or some other approach falling short of a hearing de novo. In practice, the Circuit Court has generally followed the decision in Ulster Bank v. Financial Services Ombudsman which is deferential towards the decision maker and requires the appellant to show a serious and significant error in the decision. However, given the scarcity of written judgments at Circuit Court level and the lack of any High Court precedent the matter remained open until now.

In this case, Mr. Nowak was an unsuccessful student with Chartered Accountants Ireland (CAI) and sought access to information held by CAI including a copy of his examination script. While other information was provided to him, the examination script was withheld on the basis that it did not constitute personal data. Mr. Nowak complained to the DPC, who ultimately declined to investigate his complaint on the basis that the complaint was frivolous or vexatious.

Mr. Nowak then brought an appeal to the Circuit Court under s.26, where Judge Linnane held that the court had no jurisdiction to hear the appeal where the DPC had declined to investigate the complaint on this basis. On subsequent appeal the High Court (Birmingham J.) agreed, ruling that:

I find myself in respectful agreement with Judge Linnane that the jurisdiction of the Circuit Court is to hear an appeal against a decision that has been arrived at after there has been an investigation. I share her view that absent investigation of the complaint and a decision in relation to the investigation, that the Circuit Court has no jurisdiction. The entitlement of an aggrieved party in the first place to submit an appeal and then of the Court to hear and determine an appeal arises only where there has been a decision of the Commissioner in relation to a complaint under section 10(1)(a). However, the Commissioner reaches a decision in relation to a complaint only if, not having decided that the matter is frivolous and vexatious, he proceeds to investigate the complaint and reaches a decision in relation thereto.

More importantly, however, Birmingham J. nevertheless went on to consider the substantive issue raised by the appellant and held that:

15. Had an appeal been possible, it would then have been necessary to consider how a court should approach the hearing of an appeal from a body such as the Data Protection Commissioner. How a court should approach an appeal from a statutory body was addressed by Finnegan P. in the case of Ulster Bank v. Financial Services Ombudsman [2006] IEHC 323 (Unreported, High Court, Finnegan P., 1st November, 2006). In the course of his judgment he commented:

"To succeed on this appeal the Plaintiff must establish as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors. In applying the test the Court will have regard to the degree of expertise and specialist knowledge of the Defendant. The deferential standard is that applied by Keane C.J. in Orange v The Director of Telecommunications Regulation & Anor and not that in The State (Keegan) v Stardust Compensation Tribunal."...

17. I am satisfied that the approach identified by Finnegan P. is the one that would have been appropriate to apply had an appeal been available. In particular, it seems to me that it would have been appropriate for the court to have regard to what Finnegan P. referred to as the deferential standard, when deciding whether to substitute its own view for that of the Data Protection Commissioner on the issue of whether an examination script constituted personal data. The Data Protection Commissioner is concerned with issues involving data protection on a daily basis. He is required to be in regular contact with his colleagues in other EU member states and is likely to be fully au fait with developments internationally. Pointing to the expertise of the Data Protection Commissioner does not mean that a court will abdicate its responsibilities and there may be cases where decisions of the Commissioner will be set aside, but if that happens, the decision to set aside the decision of the Commissioner will have been taken by a court that is conscious of the experience and expertise of the Commissioner. [Emphasis added.]

Applying this standard, Birmingham J. went on to hold that examination scripts did not, per se, amount to personal data and that the DPC was entitled to find that the examination scripts in this case did not contain personal information. He also held that the DPC was entitled to find the complaint frivolous or vexatious on the basis that:

Th[e] section refers to complaints that are frivolous or vexatious. However, I do not understand these terms to be necessarily pejorative. Frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome...

The decision of the Circuit Court was therefore affirmed.

While the points raised regarding examination scripts and frivolous and vexatious complaints are significant in their own right, for me the most important part of the decision is its clear statement that the courts should be slow to set aside decisions of the DPC. The standard applied - that of a serious and significant error - sets the bar quite high for any challenges.

Scenes from the history of the IEDR

The .ie Domain Registry (the IEDR) has been in the news lately following a compromise which left Google.ie and Yahoo.ie redirected to an Indonesian server controlled by hackers. This reminded me to scan and upload some documents from a 2003 Freedom of Information Act request to the Department of Communications about the IEDR - while of little contemporary relevance, they are very informative indeed for anyone with an interest in the history of the .ie space and hopefully will be a useful follow on to the massive set of documents Michele Neylon obtained under FOI relating to the formation of the IEDR.

ENN has some background about the precarious state of the IEDR in 2003.

Apologies for the poor formatting - the documents are as received from the department: FOI re IEDR, 2003

High Court orders Quinns to reveal passwords to receiver

In an interesting decision the High Court (Kelly J.) yesterday ordered that members of the Quinn family must provide passwords to personal email accounts and other information to a receiver appointed over their assets. The order was made in support of the injunctions already granted aimed at recovering assets following a "mesmerisingly complex" asset-stripping scheme in breach of court orders.

This is significant and may well be the first time an Irish court has made an order requiring a party to civil litigation to reveal their passwords to the other side - while there's extensive caselaw in the related area of electronic discovery, none of the reported cases seem to have required the production of passwords. [Update - the ever knowledgeable Andy Harbison tells me that this isn't in fact the first case where an Irish court has made an order requiring that passwords be disclosed - this has been done in at least one Anton Piller order, though unfortunately there's no reported judgment.]

Given the invasiveness of the procedure - especially the fact that personal emails would be involved - the court built in protections into the order, so that:

[T]he information must only be seen by the receiver and a named solicitor..

The judge approved a protocol proposed by the receiver for obtaining and categorising information from the phones and computers. It involves material being downloaded in the presence of the Quinn defendants by a representative of a company hired by the receiver.
That material will then be categorised by the receiver into three categories -- relevant and not privileged, irrelevant, and apparently privileged. Disputes over privilege issues will be decided by the court.

More details in the Irish Times|Irish Independent.

For the related issue as to whether password disclosure can be compelled in criminal matters see this post from 2010.)

Irish newspapers have some curious views about search engines

The Irish newspaper industry seems to have chosen today for a bout of collective hyperbole about search engines. Here's what the Examiner had to say:

Work generated through effort, skill, imagination, professionalism, and usually considerable capital investment, is pirated by businesses with no connection to the creative process as a means to win revenue without risk or outlay. This process is hardly different to what we more commonly describe as theft. The scale of the piracy is astounding. In 2010, while every media company in the country shed jobs and cut costs to the bone, a single search engine operating in Ireland offered around 150,000 newspaper articles that cost publishers an estimated €46.5m to generate. Last year that site offered more than 350,000 articles at a cost equivalent to more than €110m. And all without paying one cent to those who created those articles.

There's more in the same vein from the Irish Times and the Independent.

Incredible, isn't it, that the newspapers are powerless to defend themselves against this "theft" and "piracy". Oh, wait - they're not. Instead, they've deliberately chosen to allow in search engines and to profit from the traffic which they generate.

Here's a non-technical explanation. You don't have to allow your site to be indexed by search engines. If you don't want your site to appear on Google you can use a simple file, known as robots.txt, which tells search engines what they can and can't do. The Examiner has one, as does the Irish Times and the Independent. So do they tell these "pirates" and "thieves" to keep out? Absolutely not. In fact, all three provide sitemaps for search engines which summarise their sites and make them easier to index, while both the Irish Times and the Independent provide specific instructions for the "Mediapartners-Google" searcher. Why do they do this? Because of a business decision that they benefit from the readership which added visibility in search engines generates.

The tone of the piece in the Examiner is entirely deceptive: far from being the helpless victim of "theft" and "piracy", the newspaper has chosen, for its own commercial advantage, to allow its site to be indexed and to benefit from the resulting visitors. Should the newspaper object, it is free to opt-out at any point. But it is shoddy work to misrepresent the position to its readers in this way.

Internet betting: Irish government seeks to introduce blocking on no evidence and against EU findings

Roulette, originally uploaded by discopalace

There's been surprisingly little coverage of Irish government plans to require blocking of foreign betting websites. The plans, contained in s.26 of the Betting (Amendment) Bill 2012, would allow the District Court to make orders as follows:

in the case of a remote bookmaker or remote bookmaking intermediary, an order that telecommunications service providers and internet service providers in the State shall not permit access to — (i) the internet address of any internet domain that the remote bookmaker or remote betting intermediary concerned uses for the purposes of conducting his business, (ii) a particular facility in such a domain, or (iii) any other order that that court considers appropriate for the purpose of ensuring that any such domain, or any remote bookmaking operation conducted by the remote bookmaker or remote betting intermediary concerned is not accessible to persons in the State.

Leaving aside the technological inexactitude of this provision (what, exactly, is a "facility" in a domain? A sub-domain? A particular directory or path?) this is a remarkably wide provision which should worry Irish internet companies.

The reference to internet "service" providers rather than internet "access" providers appears to be wide enough to cover any service provider which could be used to access a site - which would appear to include providers of VPNs, search engines, DNS providers and others. This wide power is then further supplemented by a power to make "any other order" that [the] court considers "appropriate" to ensure that the domain etc. "is not accessible". This seems to be drafted with a view to ordering that sites should be delisted from search engines but could, potentially, be used against any internet intermediary and could be used to, for example, block access to proxy sites and other tools which might be used to circumvent the blocking.

What justification has the Irish state provided for such a far reaching power? Essentially, none. Online gambling was first considered in detail by government in the 2008 report Regulating Gaming in Ireland which cautioned against blocking systems:

The Committee is of the view that censorship of the Internet in an effort to achieve such ends is frequently self-defeating, is unlikely to achieve the intended results, leads to the diversion of scarce law enforcement resources and frequently has unintended and undesirable consequences.

This conclusion was, essentially, reiterated in the 2010 report Options for Regulating Gambling which contained no independent analysis on this point. These are, to date, the only government documents which address the issue - there has been no regulatory impact assessment published - and it is striking that neither recommends blocking systems.

In much the same way, the European Commission Staff Working Paper on Online Gambling recently came out against blocking systems, stating that:

However, blocking access to websites does not work as an isolated enforcement tool and can be easily circumvented. Moreover, depending on the technology used, website blocking can impact on legitimate businesses. The efficiency of the blocking method furthermore depends on the validity of the list of blocked websites. Keeping the list up-to-date requires significant resources while internet addresses can be changed instantly. Lastly, ISPs are faced with the implementation of the provisions for blocking access to websites, not only implying costs and tying-up of resources but also creating potential liability issues.

Simply put, the case has not been made for this new type of blocking and it would set a worrying precedent if such a far reaching power were to be created.Once ISPs are forced to introduce blocking mechanisms for one purpose, it is only a matter of time before others seek to jump on the bandwagon.

High Court: Bloggers can benefit from journalistic privilege

There's quite a lot to digest in the recent decision of Hogan J. in Cornec v. Morrice & Ors. Most of the judgment deals with wider issues in the protection of journalists' sources, and unsurprisingly the media coverage so far tends to focus on this aspect. But reading the judgment, I was struck by the way in which it considered whether non-traditional media could also benefit from similar protections. In particular, it appears to be the first Irish judgment to consider the position of bloggers.

In this case orders were sought to compel two individuals - Nicola Tallant and Mike Garde - to testify for the purposes of US civil proceedings. Both objected to the orders on various grounds, including the argument that requiring their testimony would reveal both their sources and the information provided by these sources, contrary to their journalistic privilege recognised by Irish law. ("Journalistic privilege" is used here as shorthand - para. 42 of the judgment makes it clear that strictly speaking there is no such thing. Nevertheless it is a useful phrase to capture the rights which journalists may have in certain situations.)

In the case of Nicola Tallant, an investigative reporter with the Sunday World, there was no difficulty in applying the concept of journalistic privilege. The position of Mike Garde was rather more ambiguous. As the court put it, he was "not a journalist in the strict sense of the term". Instead, he was a director of Dialogue Ireland - an independent organisation working with people who become caught up in cults or fringe religions - and regularly appeared in the media and blogged about issues surrounding cults. Despite this, however, Hogan J. had no hesitation in finding that he should also benefit from a similar protection, holding that:

While Mr. Garde is not a journalist in the strict sense of the term, it is clear from that his activities involve the chronicling of the activities of religious cults. Part of the problem here is that the traditional distinction between journalists and laypeople has broken down in recent decades, not least with the rise of social media. It is probably not necessary here to discuss questions such as whether the casual participant on an internet discussion site could invoke Goodwin-style privileges, although the issue may not be altogether far removed from the facts of this case.

Yet Mr. Garde’s activities fall squarely within the “education of public opinion” envisaged by Article 40.6.1. A person who blogs on an internet site can just as readily constitute an “organ of public opinion” as those which were more familiar in 1937 and which are mentioned (but only as examples) in Article 40.6.1, namely, the radio, the press and the cinema. Since Mr. Garde’s activities fall squarely within the education of public opinion, there is a high constitutional value in ensuring that his right to voice these views in relation to the actions of religious cults is protected. It does not require much imagination to accept that critical information in relation to the actions of those bodies would dry up if Mr. Garde could be compelled to reveal this information, whether in the course of litigation or otherwise. It is obvious from the very text of Article 40.6.1 that the right to educate (and influence) public opinion is at the very heart of the rightful liberty of expression. That rightful liberty would be compromised – perhaps even completely jeopardised – if disclosure of sources and discussions with sources could readily be compelled through litigation. [Emphasis added]

This strikes me as a very important ruling - by explicitly equating blogs and other new media forms with the traditional "organs of public opinion" protected by the Constitution it may well strengthen the position of internet authors not just in relation to the protection of sources but also in other areas such as defamation.

Hillsborough: using police databases to smear the dead

Yesterday saw the publication of the Report of the Hillsborough Independent Panel which confirmed many of the criticisms made by the families of those killed in the disaster. One of the most shocking points in that report for me was the revelation that criminal record checks were carried out on some of the dead, with a view to smearing them and deflecting criticism of police handling of the event. This illustrates an important point that privacy campaigners have been making for a long time: centralised databases of this type can and will be abused, and the power to trawl databases for information on individuals - in effect, to manufacture a case against them - is a dangerous one. It's not hard to imagine how data retention records might be abused in a similar way in future. With that in mind, here's an excerpt from the Report setting out what was done:

Criminal record checks on the deceased

2.5.111 A solicitor involved in the Hillsborough inquests disclosed a document to the Panel showing that criminal record checks were conducted selectively on some of the deceased who had recorded blood alcohol levels. To protect the privacy of the deceased the Panel has decided not to make public the document but to describe the process through which an attempt was made to establish links between blood alcohol levels and previous criminal convictions.

2.5.112 The document indicates that a Police National Computer (PNC) check was conducted on all who died at Hillsborough for whom a blood alcohol reading above zero was recorded. It includes a handwritten list of the names, dates of birth, blood alcohol readings and home addresses of 51 of the deceased and provides screen-prints apparently drawn from the PNC. A summary of the results appears on the front page, establishing the number ‘with cons’ (convictions).

2.5.113 The document was not formally part of the West Midlands or South Yorkshire Police inquiries and there is no record in the documents provided by either force or by the Coroner. There is no record of who conducted the checks or precisely when the checks occurred. The National Policing Improvement Agency, the organisation responsible for the PNC, confirmed to the Panel that information has not been retained within the PNC.

2.5.114 It is the Panel’s view that criminal record checks were carried out on those of the deceased with recorded blood alcohol levels in an attempt to impugn personal reputations. There is, however, no evidence to suggest that this inappropriate – and possibly unlawful – exercise was used in the investigations, inquiries or inquests.

Internet freedom in Ireland: apathy is not a policy

The OSCE Dublin Conference on Internet Freedom is just starting (livestream) where numerous superb speakers will be discussing fundamental rights online. It prompted me to wonder - is Ireland a worthy host? How does the overall Irish track record on online freedoms stack up?

Taken as a whole, it strikes me that the internet is generally quite free in Ireland, but this is a result of apathy rather than policy. By that I mean that Ireland compares well on metrics such as the number of government censorship requests to Google, and looks good when compared against e.g. our astonishingly authoritarian neighbour. However, this is largely as a result of government failure to act. Where the Irish government has acted it has almost always done so in a way which threatens or at most is only neutral in relation to online rights.

The most obvious example is mass surveillance via data retention, where the Irish state was a leader in seeking to impose this throughout Europe. But there are numerous others. Draconian Irish defamation law continues to threaten freedom of expression, and the Defamation Act 2009 did very little indeed to protect online speech, ignoring recommendations from the Government's own expert report on defamation law. The recent copyright statutory instrument seems intended to permit internet blocking at the behest of the music industry, in a way which is likely to be without notice to blocked sites, to lack transparency, and to cause significant collateral damage. The role of the Data Protection Commissioner has been threatened by double digit percentage cuts in funding, leading to a situation where enforcement of privacy rights in Ireland is massively under resourced. In the same way, there is no adequate discipline for Irish police who abuse communications records to spy for their own private purposes. The list of negatives could go on.

What about the positives? Only one comes to mind - the recent establishment of the Copyright Review Committee to examine fair use and wider reform. Even here, however, any impact on fundamental rights will be incidental: the aim of the Government in setting up the review group was primarily commercial - to promote "innovation" and employment. Any impact on fundamental rights is incidental.

The conference was just opened by Eamon Gilmore, who spoke in proud terms about James Joyce, censorship and freedom of expression. (I suspect he's not familiar with the way in which the Joyce estate has abused copyright law to silence critics.) It strikes me, though, that for all these fine words the Irish state has a long way to go in showing genuine respect for fundamental rights online. Irish rights online are largely the result of apathy, and apathy is not a policy.

Record numbers of complaints, data breaches and more (all on a shoestring budget)

The Data Protection Commissioner's 2011 Annual Report was published today. While the whole document is well worth reading, a few highlights struck me as worth particular attention.

Resources

Unsurprisingly - particularly in the light of the ongoing Facebook investigation - the report starts by saying that the financial and personnel position of the Office has become unsustainable in light of increased demands, with the warning that failing to remedy this will jeopardise investment in Ireland:

The scope of our responsibilities has changed significantly in the past 3 to 5 years. This arises in particular from the success of the Industrial Development Authority in attracting to Ireland companies conducting significant processing of personal data. We have worked with these companies to help them understand their obligations under EU data protection law towards all EU users of their services.

The legislative proposals presented by the European Commission1 in January of this year, if passed into law, will involve increased responsibilities for our Office under the so-called “one-stop-shop” arrangement for multinational companies providing services to EU users from an Irish base. While the exact division of labour between data protection authorities has yet to be finalised, it clearly will involve a greater degree of responsibility for our Office in relation to multinational companies which choose Ireland as an EU base. Failure to adequately discharge this responsibility will carry significant reputational risks for the country...

The implications of our increased European responsibilities were brought home to us forcefully in relation to our audit of the activities of Facebook-Ireland. Facebook- Ireland had unambiguously placed itself under our Office’s jurisdiction through changes in its contractual arrangements with its EU users and the establishment of clear responsibility for the processing of their data. We therefore included them in our programme of audits for 2011. This was the most complex audit ever undertaken by our Office, involving about a quarter of our staff resources for 3 months and external technical assistance from University College Dublin (UCD)...

We clearly cannot maintain a similar level of commitment in relation to other multinational companies without additional resources. I am confident that this message is understood by the Government and would hope to be allocated additional resources in the course of this year. [All emphasis added.]

Number of incidents

Complaints reached a record high last year with 1,161 complaints under the Data Protection Acts and 253 complaints under the ePrivacy Regulations (dealing with unsolicited texts messages, etc.). Remarkably, data breach notifications outnumbered both types of complaints with 1,167 notifications during the year from 186 different organisations (up from 119 in 2009 and 410 in 2010). This seems to reflect greater awareness of the obligation to notify, rather than any increase in breaches, and presumably will plateau in coming years - but the sheer volume of notifications presents its own challenges.

Unsolicited marketing prosecutions

One area where the DPC has been particularly successful is in relation to unsolicited marketing text messages and telephone calls, where there now seems to be a well-oiled machine in place for prosecuting repeat offenders. In relation to communications providers alone, in 2011 successful prosecutions were brought against:

* Eircom: one unsolicited telephone marketing call, Probation Act applied, €2,000 donation made to charity;
* Vodafone: four unsolicited telephone marketing calls, one text message, total of €3,850 in fines imposed;
* o2: one unsolicited text message, Probation Act applied, €2,000 donation made to charity;
* UPC: eighteen charges relating to unsolicited telephone marketing calls, total of €7,100 in fines imposed.

Political spam now prohibited

Until recently there was an extensive exemption for political direct marketing - one which was arguably incompatible with the requirements of the ePrivacy Directive. This has now been amended, which will no doubt be a relief to Irish voters in the run up to the Fiscal Treaty referendum:

A second issue of concern which I commented on in 2009 was the direct marketing exemption which excluded from the scope of the Data Protection Acts any direct marketing carried out for political purposes by political parties or by candidates for election to political office. I expressed my dissatisfaction then that I was unable to launch investigations into complaints which I received from voters who received unsolicited SMS messages, emails or phone calls even when they had made it clear that they did not wish to be contacted in that way. Had such unsolicited marketing contact been made to members of the public by any other entity, such as a commercial business, there would be no restriction on my investigating the matter. I expressed doubts in my 2009 Annual Report about the consistency with EU Directives of the exemption in this country for such political activities.

I am pleased to report that the Minister for Communications, in framing S.I. 336 of 2011, removed the exemption relating to direct marketing for political activities in the context of marketing communications carried out by electronic means – such as SMS messages, faxes, email and telephone calls. As a result, I am no longer restricted from investigating complaints in this area. Accordingly, in my role as Data Protection Commissioner, I am obliged to investigate any such complaints in this area.

In this respect, arising out of the Presidential Election which took place following the commencement of SI 336 of 2011 on 1 July, I have already issued a warning to a political party about the sending of unsolicited marketing text messages in the course of the campaign. A second such incident is likely to lead to a prosecution. [Although not identified in the Annual Report, the Sunday Times has named Sinn Fein as the offending party.]

Department of Social Protection Audit

One of the greatest offenders against individual privacy has been the Department of Social Protection, formerly the Department of Social Welfare, which has a long and ignominious track record of staff abuse of personal information. (One recent example.) Worryingly, however, the Annual Report confirms earlier reports that Social Protection databases may be open to abuse externally as well as internally - by other state entities which have access to the departmental systems:

Also included in the list of the audits is an INFOSYS investigation. This refers to an in-depth examination of the use of INFOSYS – a database of social welfare data administered by the Department of Social Protection. The INFOSYS investigation focused on the authorised use of INFOSYS by a whole range of external third parties, including local authorities and state agencies. Initially INFOSYS was a ‘desk audit’ entailing extensive correspondence in the second and third quarter of 2011 between my Office and external users of INFOSYS. It was my intention to comment extensively on this investigation in this report but this has not proven possible, given the resources needed, to complete it to a suitable level. However, the interim findings have caused my Office to engage with the Department of Social Protection and the large number of entities authorised to access the system to address the deficiencies identified so far.

Guthrie Cards / Heel Prick Samples

One of the most important issues dealt with by the report is the (long delayed) destruction of illegally-held blood samples taken from all newborns. The full discussion is too long to excerpt here, but one important point (which the media don't appear to have picked up) is that the Minister for Health and the HSE appear to have attempted to evade the Data Protection Commissioner in their efforts to create a national DNA database, by freezing out the DPC from a "review" of the decision to destroy the samples:

A final issue that emerged can essentially be summarised as that it would be useful to continue to hold the millions of samples involved to form the basis of a national database which could be used for health-related genetic (DNA) analysis We were obliged to point out that the creation of such a database, without the consent of the persons involved (or their parents/guardians as appropriate) would be a clear breach of the Data Protection Acts. It would also run counter to the spirit (if not the letter) of the Disability Act 2005 – which requires individual consent for the carrying out of genetic tests – and of the Marper judgment of the European Court of Human Rights in relation to the retention of DNA samples in a criminal context However, in light of concerns expressed around such issues, we understand that the Minister for Health asked for a full review of the decision taken by the HSE to destroy the samples on the terms agreed with this Office. We were not a party to this review but it is now completed and at the time of writing the Minister had approved the position previously agreed including the publicity campaign for people to seek earlier deletion or continued retention depending on their own particular preferences.

Security cluelessness

Finally, although it's not an issue of any great significance, I was amused by case study 7 in which insurance company Allianz chose to use three pieces of publicly available information for their "security questions":

Allianz informed us that it introduced three ID security questions consisting of date of birth, mother's maiden name and place of birth. It stated that these questions were introduced to ensure that it was keeping its customer's personal information safe and secure and to prevent any unauthorised disclosure. As previously outlined in my 2009 Annual Report it is our view that the use of questions such as date of birth and mother's maiden name for the purpose of ensuring security of data is not an adequate safeguard against disclosure to a third party. Such questions may in fact be a security vulnerability as this type of information is publicly available upon payment of a fee to the General Register Office and is therefore of limited value on its own as a security feature.

Surveillance up, but bugs being discovered by targets

Smoke alarm claimed to have been bugged by gardaí

John Mooney and Mark Tighe have an detailed piece in today's Sunday Times arising out of the latest report of the designated judge under the Criminal Justice (Surveillance) Act 2009. Some highlights:

AN INCREASING number of requests by gardai for permission to spy on alleged criminals and terrorists are being rejected because the operations were premature, excessive or contained inadequate information. A report on the state's covert surveillance operations by Kevin Feeney, a High Court judge appointed to audit spying activities by gardai, Customs and the military, found a small increase in the number of cases where gardai were refused permission to plant eavesdropping devices and tiny cameras to spy on people suspected of involvement in paramilitary groups and organised crime.

In one case, a chief superintendent who asked to use an audio transmitter was refused permission because the surveillance was not proportionate to the identified objectives of the operation. Applications by garda officers for surveillance warrants were turned down on the basis that the premises where the device was to be located had not been confirmed as available or appropriate.

The 2009 Surveillance Act allows gardai, the Defence Forces and Revenue Commissioners to break into homes and cars to plant recording devices and tiny cameras to record private conversations. The "product" can be used as evidence in prosecutions. Permission for the surveillance, which can last up to three months, must be granted by a district court judge.

Feeney said the number of cases where gardai obtained district court authorisation to plant devices was "a small double-figure number". The number of authorisations that were declined was fewer than 10, but up on the previous year.

The report, obtained by The Sunday Times, also noted that surveillance and countersurveillance devices can be bought by the public. The judge said the availability of such equipment was brought to his attention when gardai found a device that had been installed by an unknown third party to monitor a person they were spying on. The report makes no reference to the discovery of such equipment by people being spied upon. Security sources say several devices have been detected recently...

I'll upload a copy of the latest report as soon as I have it. In the meantime, the 2009/2010 report is available here.

Fresh claims that Irish police have been hacked

It's been an embarrassing time recently for Irish police, following allegations that Lulzsec hackers were able to compromise the personal email accounts of senior gardaí, enabling them to record a FBI hosted conference call involving international computer crime specialists. Interestingly, Monday's Daily Mail had a story (which doesn't seem to have been picked up by other Irish media) suggesting that there have been wider breaches of garda security. Excerpt:

A MAJOR Garda security alert into phone and email hacking of the country's highest ranking officers is under way.

The Mail can reveal that deputy commissioner Noirín O'Sullivan has ordered an investigation into apparently widespread phone and email hacking of senior gardaí.

It is understood the investigation has established that Pulse, the Garda intelligence system, has not been compromised.

However, senior security sources say that the emails and phones of senior gardaí have been hacked.

The investigation is attempting to establish the extent of the hacking and for what purpose confidential garda information is being targeted.

The probe has established that the head of police in another European country has had his email illegally accessed by an Irish-based hacker.

At least two other senior police officers in other European forces have had their email compromised.

The investigation is being taken 'extremely seriously' by Garda management and checks are under way on senior officers' phones and emails to see if they have been illegally accessed.

Some gardaí have had their phones and emails hacked, but because of the sensitive nature of the investigation, senior sources could not reveal what exactly has been accessed. A file is being prepared for the Director of Public Prosecutions. One key aspect of the probe is trying to establish for what purpose the hacking was initiated. It is understood that gardaí checking to see if online Irish based hackers are sharing the confidential information that has been hacked with others internationally...

As one of the State's two deputy commissioners, Noirín O'Sullivan holds the second most senior rank in the force, with responsibility for operational policing and national security.

The fact she ordered the investigation indicates how seriously the matter is being taken by Garda management.

Eircom admits user disconnection is illegal; wants other Irish ISPs to do it anyway

You couldn't make it up. Eircom, not content with shooting itself in the foot by agreeing to introduce a "three strikes" system which wasn't required by the law, now wants its rivals to do the same. Presumably that would be the same three strikes system which Eircom's head of public policy has admitted is in breach of European law.