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The role of NGOs in Public Interest Litigation Digital Rights Ireland PILA Seminar 9 February 2012

The role of NGOs in Public Interest Litigation Digital Rights Ireland PILA Seminar 9 February 2012. TJ McIntyre. Without whom none of this would be possible. McGarr Solicitors Frank Callanan SC Fergal Crehan BL Mark Dunne BL.

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The role of NGOs in Public Interest Litigation Digital Rights Ireland PILA Seminar 9 February 2012

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  1. The role of NGOs in Public Interest LitigationDigital Rights IrelandPILA Seminar9 February 2012 TJ McIntyre

  2. Without whom none of this would be possible • McGarr Solicitors • Frank Callanan SC • Fergal Crehan BL • Mark Dunne BL

  3. Background: Data retention as a tracking mechanism, both geographic...

  4. ... and social, monitoring communications and mapping citizens

  5. Timeline – Ireland • Pre 2001 • 6 year data retention • No legal basis • Nov. 2001 – Irish Times breaks story • Data Protection Commissioner intervenes • Directs 6 month retention period • Apr. 2002 – Ministerial Direction • s. 110 of the P&TSA 1983 • 3 year retention period • Direction secret

  6. Timeline – Ireland • DPC claims Ministerial Direction inadequate • Not intended use of legislation; ultra vires the 1983 Act • Primary legislation would be required • Judicial review threatened • Enforcement notice issued • All of this happened in secret • Criminal Justice (Terrorist Offences) Act, 2005 • 3 year data retention for all telephone calls and mobile locations • Does not extend to internet use

  7. The European Dimension • 2006 Data Retention Directive • EU law; supersedes national laws • Requires telcos, ISPs to log your movements, calls, texts, email, etc. • Traffic data rather than content • Up to 2 year retention • Accessible for • Terrorism, serious crime • Filesharing • Defamation • Whatever national lawallows... • No warrant required to access

  8. Irish Implementation of Directive • Communications (Retention of Data) Act 2011 • Covers internet use • Retention period: • 2 year telephony • 1 year internet • Data access still a matter for internal Garda approval only

  9. Objections? • Proportionality and principle • Should we monitor the entire population at all times? • Risks of abuse • By both state and industry • No necessity • EU states accepted “data preservation” in 2001 - why hasn’t this been tried? • Function creep • Calls to extend to search engines , etc. • Chilling effects

  10. Challenging Data Retention Electronic Frontier Finland Julia Group Electronic Frontier Norway FIPR Danish Consumer Council ICCL ORG Digital Rights Ireland Internet Society Poland Bits of Freedom AK Vorrat IuridicumRemedium La Quadrature du Net Hungarian Civil Liberties Union APTI (Over 100 organisations in total... this is just a random smattering) ALCEI exgae Winston Smith Project • National civil rights groups coordinating through EDRi • Litigation strategies to overturn data retention • Political strategies to repeal / amend Directive

  11. Court challengessuccessful/pending/rejected Bulgaria Romania Germany Ireland Hungary France Czech Rep. Cyprus

  12. Outcomes? • France (2007) • Industry challenge rejected • Bulgaria (2008) • National law void for vagueness • Romania (2009) • Data retention itself found to breach ECHR for interference with private life • Germany (2010) • National law unconstitutional for inadequate safeguards • Other litigation pending • Czech Republic (2011) • Implementing law found vague, open to abuse • Cyprus (2011) • Police access held too extensive • Hungary (pending) • Partial victories only • Helping to form legal / political opinion; but the Directive remains in place and replacement laws must be passed

  13. Digital Rights Ireland challenge • Challenge to both Irish law and Directive • Started 2006 • Favourable venue • Preliminary hurdles (2010) • Locus standi • Security for costs

  14. Where are we now? • Irish Human Rights Commission an amicus curiae • Actio popularis granted • “sincere & serious litigant” • Security for costs rejected • “issues of significantpublic importance” • Reference to ECJ given • Order finalised;2 year wait to be heard • Delay helpful!

  15. What happens if we win? • If the Directive is struck down: • Data retention returns to political arena • May be back on the agenda at EU level • Will probably be backon agenda atnational levels

  16. Parallel political strategies • Evaluation of Directive just concluded • Unique opportunity to change political climate • (And to gather evidence for DRI action) • Art. 29 Working Party have found Directive is being abused, ignored • Content data being held (esp. URLs visited) • Longer retention periods than allowed – 10 years in one case! • No real statistics on use of retained data, evidence of usefulness, necessity • Data being handed over by ISPs outside legislation • No effective harmonisation • Over 100 civil society groups have called for repeal • Growing awareness amongst journalists, doctors, lawyers

  17. Observations • The decision to litigate • A last resort? • A resource intensive distraction from political activity? • Are there low cost alternatives? Allies? • Data Protection Commissioner / European Commission? • Advice to criminal practitioners? • Can the organisation afford to lose? • Choice of forum • Not just national but now international • National standing rules? • Access to constitutional courts? • Willingness to make references to ECJ?

  18. Observations • Choice of plaintiff crucial • Corporate plaintiffs still face difficulties • What rights do they have? To what extent? • Abstract nature of case may harm chances • Litigation beyond the capacity of an individual • Even in criminal matters • International dimension increasingly the norm • Domestic law always viewed against ECHR • Action before ECJ may be necessary • International cooperation may be desirable or essential • Partner groups supply evidence, expertise, etc. • DR policy demands international engagement • Policy laundering more common

  19. Observations • Role of the IHRC • IHRC resource constrained; • but amicus work is a high impact and (relatively) low cost exercise • Immensely useful in establishing credibility before High Court • What is the endgame? • Judgments aren’t (necessarily) self-executing • What happens once you win your challenge? • Is there a political coalition in place to take advantage? Or is it back to square one? • Is your challenge substantive or procedural?

  20. Thank you More information: Web: DigitalRights.ie; TJMcIntyre.com Twitter: @tjmcintyre

  21. Background reading • Breyer, “Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Data Retention with the ECHR” (2005) 11(3) European Law Journal 365 • McIntyre, “Data Retention in Ireland: Privacy, Policy and Proportionality” (2008) 24(4) Computer Law and Security Report 326 • Digital Rights Ireland v. Minister for Communications and others [2010] IEHC 221.

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