Minister McEntee obtains High Court order requiring retention of data for State security

The Minister for Justice Helen McEntee has obtained a High Court order requiring communications service providers to retain certain data - including user, traffic, and location data - for a period of 12 months for the purpose of safeguarding the security of the State.

The Minister made an application for the retention of such data under section 3A of the Communications (Retention of Data) Act 2011, the State’s legal framework governing the retention of, and access to telecommunications data. The application was made to a 'relevant judge' designated by the President of the High Court under section 3A(10), on Friday last, 21st June.

This is the second such order for retention of such data, following an order granted in June 2023 at the time of commencement of relevant provisions following the amendment of the Act in 2022 to take account of rulings of the European Court of Justice.

Under section 3A of the 2011 Act the general and indiscriminate retention of data is permissible only to safeguard the security of the State, and where an order has been made by a relevant judge of the High Court.

Where the Minister for Justice is satisfied, that there exists a serious and genuine, present or foreseeable threat to the security of the State, the Minister may make an application to the High Court.

The Order granted by the High Court pursuant to section 3A requires service providers to retain certain data (including user, traffic, and location data – referred to as “Schedule 2 data”) for a period of 12 months from 26 June 2024.

As is required under section 3A(2), Minister McEntee, prior to making the application, assessed the threat to the security of the State and had regard to the necessity and proportionality of the retention of Schedule 2 data taking into account the impact of such retention on the fundamental rights of individuals. The Minister also consulted with the Garda Commissioner prior to making the application.

The application, as required, by section 3A(3), was made on an ex parte basis and was heard in camera.

Section 3A(4) provides that the relevant judge may make such an order “only if satisfied that the making of such an order is necessary for, and proportionate to, the purposes for which the application was made”.

Minister McEntee said:

“I made an application for an order requiring the retention of data, having assessed the threat to the security of the State and having satisfied myself that there exists a serious and genuine, present or foreseeable threat to the security of the State and that such threat is likely to continue for at least the next 12 months.

“In doing so I had regard to the necessity and proportionality of the retention of the data concerned and took account of the impact on the fundamental rights of individuals as required.”

Access to retained data is subject to strict safeguards provided for under the 2011 Act including the requirement for judicial authorisation at District Court level.

ENDS..//

Notes for Editors:

The section 3A order will be publicised as required by section 3A(6) of the 2011 Act.

Section 3A(6) provides that where a relevant judge makes an order the Minister shall, without delay arrange for:

• the order to be publicised in the national media

• the order to be notified, in so far as practicable, to service providers, and

• a notice of the making of the order to be published in Iris Oifigiúil

The operation of the Act is subject to supervision by a Designated High Court Judge who reports annually to the Taoiseach, in accordance with Section 12 of the Act.