Interception - Department of Communications - FOI Internal Appeal
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Transcript of Interception - Department of Communications - FOI Internal Appeal
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Pp~ An Roinn Cumarsaide,
l~ Fuinnimh agus Acmhainni Nadu" rtha
~ Halie Atha Cliath 2.
Department of Communications,
Our Ref: FOI/2011/31/
November 2011
Mr T.J. Mclntyre
Di `tagllRiIreland Ltd,
Dear Mr Mclntyre,
I refer to your appeal of 17 October 2011 under the Freedom of Information Acts
1997 and 2003 for a review of the earlier decision of this Department datedSeptember 22 concerning Lawful Interception and Illegal Interception.
I am a more senior member of the staff of this Department than the person who made
the decision of 22 September 2011. As I understand the issues, you are appealing the
Departments decision on paragraphs 1, 2(a), (b) and (h) and 5 of your original request.
This review decision is an entirely new and separate decision on your request and is
explained below:
Paragraph 1: Records relating to Interception of Postal Packets and
Telecommunications Act 1993.
I have reviewed your information request. In the first instance I am of the opinion that
any papers relating to this request are pre 2001 and are therefore outside the scope of
your original request. Secondly any papers relating to the 1993 Act would be pre
April 1998; the provisions of the Freedom of Information Acts (as amended) are not
applicable to this request.
Paragraph 2 (a): Records relating to interception in the context of the preparation
or implementation of: the ePrivacy Directive (as adopted and
amended);
I have reviewed your information request. The ePrivacy Directive refers to Directive
2002/58/EC of the European Parliament and of the Council of 12 July 2002
concerning the processing of persona! data and the protection of privacy in the
electronic communications sector. This Directive was amended in 2009 by Directive
2009/ !36/EC (the Citizen's Rights Directive).
The only reference to interception in the ePrivacy Directive is in Article 5(1) of the
Directive and this particular Article was not amended by the Directive 2009/136/EC.
I have attached Article 5(1) of the EU Directive 2001/58/EC and a copy of the
Transposition Table for the Directive. These are the only files I could locate within
29-31 Adelaide Road, Dublin 2 Tel: +353 1 678 2000
29-31 B6thar Adelaide LoCaII: 1890 44 99 00
Daile Atha Cliath 2 Fax: +353 1 678 2449
Energy and Natural Resources
Dublin 2.
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the Department in relation to your request. I have been unable to find any other
records that contain reference to interception.
Paragraph 2 (b): Records relating to interception in the context of the preparation
or implementation of: Statutory Instruments No 535 of 2003,
No 526 of 2008 and No 336 of 2011.
I have reviewed your information request. S.I. No 535 of 2003 transposes Directive
2002/58/EC as amended. In relation to the transposition of Article 5(1) of the
Directive, this' provls ion was deemed, in 2003, to already be transposed by section 98
of the Postal and Telecommunications Services Act 1983 as amended by the
Interception of Postal Packages and Telecommunications Messages (Regulations) Act
1993. There are no papers relating to this decision in the Department and therefore
refusal under Section 10 (1) (a) is appropriate in this regard.
S.I. No. 526 of 2008 was introduced in order to provide for appropriate penalties
under the telecommunications regulatory framework. This S.I. had no impact on thetransposition of Article 5(1) of the Directive. There are no papers relating to this
decision in the Department and therefore refusal under Section 10 (1) (a) is
appropriate in this regard.
S.I. No. 336 of 2011 was introduced to transpose the amendments introduced by
Directive 2009/136/EC. While Article 5(1) was not amended by Directive
2009/136/EC, it was decided for clarity that in addition to the requirements of Section
98 of the Postal and Telecommunications Services Act 1983 as amended by the
Interception of Postal Packages and Telecommunications Messages (Regulations) Act
1993, the text of Article 5(1) would be directly transposed in the new Regulations.
Accordingly, Regulation 5(1) and 5(2)(a) of S.I. No. 336 of 2011 directly transposethe requirements of Article 5(1).
This was a drafting decision and therefore no records exist in relation to this decision.
Therefore refusal under Section 10 (1) (a) is appropriate in this` regard.
Paragraph 2 (h): Records relating to interception in the context of the preparation
or implementation of: the Communications Regulation (Postal
Services) Bill 2011.
I have reviewed your information request. The Communications Regulation (Postal
Services) Act 2011 in relation to interception only extends the provisions of the 1983Act to all postal service providers in light of the liberalisation of the postal market
from 1 January 2011. The requested information contains records pertaining to the
deliberative process. In addition, I am mindful that the provision of such information
could be detrimental to the security of the state. In relation to other records which may
impact on the security or defence of the state, where the risk or damage may not be
obvious to those who work outside of the security area, I must take care to identify
what particular interests would be put at risk by disclosure. In arriving at my decision
I have consulted with those working in area of state security that are of the opinion
that no records should be released. Therefore, I am of the opinion that the request
should be refused under Section 20 (1), Section 23 (1) and Section 24(1) of the Act
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Records (whether pre or post 2001) which relate to interception
in the context of directions issued by the Minister pursuant to
Section 110 of the Postal and Telecommunications Services Act
1983.
Paragraph 5:
I have reviewed your information request. Section 110 of the 1983 Act enables theMinister for Communications to issue directions requiring compliance with anything
that he may specify as necessary in the national interest. The interception regime
operates on the complimentary interaction of this provision and the 1993 Act under
which authons'ations may be issued by the Minister for Justice in response to an
application from the appropriate authorities, which are highly confidential. As
outlined above the release of such information may be deemed to be detrimental to the
security of the State. Accordingly, I am of the opinion that your request should be
refused under Section -23(1), Section 24 (1) and Section 26 (1) of the Act.
Right of Appeal:
You may appeal this decision by writing to the Information Commissioner at 18
Lower Leeson Street, Dublin 2. There is a fee of 150 for such appeals (or 50 if you
are a medical card holder), other than appeals against a decision to impose a fee. If
you wish to appeal, you must do so no later than 6 months from the date of this
notification. Should you write to the Information Commissioner making an appeal,
please refer to this letter.
s sincerely,
\,~-.
rek ByrrAssistant Prfncipal Officer
Communications Development Division
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FOI 2011/31 -Papers
Article 5(1) of EU Directive 2002/58/EC of the European Parliament and of the
Council of 12 July 2002 concerning the processing of personal data and the
protection of privacy in the electronic communications sector (ePrivacy Directive).
Transposition Table for EU Directive 2002/58/EC
Section 98 of the Postal and Telecommunications Services Act 1983 (as amended
by the Act of 1993)
Regulation 5(3) of S.I. No. 535 of 2003.
Tab A
Tab B
Tab C
Tab D
Tab E Regulation 5 of S.I. No. 336 of 2011
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31.7.2002 N Official Journal of the European Communities L 201|4 3
2. The provisions of this Directive particularise and comple-ment Directive 95|46|EC for the purposes mentioned in para-
graph 1. Moreover, they provide for protection of the legitimate
interests of subscribers who are legal persons.
3. This Directive shall not apply to activities which fall
outside the scope of the Treaty establishing the European
Community, such as those covered by Titles V and VI of theTreaty on European Union, and in any case to activities
concerning public security, defence, State security (including
the economic well-being of the State when the activities relate
to State security matters) and the activities of the State in areas
of criminal law.
Article 2
Definitions
Save as otherwise provided, the definitions in Directive 95|46|EC and in Directive 2002|21|EC of the European Parliament
and of the Council of 7 March 2002 on a common regulatory
framework for electronic communications networks andservices (Framework Directive) Cl)shall apply.
The following definitions shall also apply:
(a) user' means any natural person using a publicly available
electronic communications service, for private or businesspurposes, without necessarily having subscribed to this
service;
(b) `traffic data' means any data processed for the purpose of
the conveyance of a communication on an electronic
communications network or for the billing thereof;
(c) `location data' means any data processed in an electronic
communications network, indicating the geographic posi-
tion of the terminal equipment of a user of a publicly avail-
able electronic communications service;
Cd) communication' means any information exchanged or
conveyed between a finite number of parties by means of a
publicly available electronic communications service. This
does not include any information conveyed as part of a
broadcasting service to the public over an electronic
communications network except to the extent that the
infonnation can be related to the identifiable subscriber or
user receiving the information;
(e) `call' means a connection established by means of a publicly
available telephone service allowing two-way communica-
tion in real time;
(f) `consent' by a user or subscriber corresponds to the data
subject's consent in Directive 95|46|EC;
(g) `value added service' means any service which requires the
processing of traffic data or location data other than traffic
data beyond what is necessary for the transmission of a
communication or the billing thereof;
(h) electronic mail' means any text, voice, sound or image
message sent over a public communications network which
can be stored in the network or in the recipient's terminal
equipment until it is collected by the recipient.
Artic!e 3
Services concerned
1. This Directive shall apply to the processing of personal
data in connection with the provision of publicly available elec-
tronic communications services in public communications
networks in the Community.
2. Articles 8, 10 and I 1 shall apply to subscriber lines
connected to digital exchanges and, where technically possible
and if it docs not require a disproportionate economic effort, to
subscriber lines connected to analogue exchanges.
3. Cases where it would be technically impossxb.le or require
a disproportionate economic effort to fulfil the requirements ofArticles 8, 10 and 11 shall be notified to the Commission by
the Member States.
Article 4
Security
1. The provider of a publicly available electronic communi-
cations service must take appropriate technical and organisa-
tional measures to safeguard security of its services, if necessary
in conjunction with the provider of the public communications
network with respect to network security. Having regard to thestate of the art and the cost of their implementation, these
measures shall ensure a level of security appropriate to the risk
presented.
2. tn case of a particular risk of a breach of the security of
the network, the provider of a publicly available electroniccommunications service must inform the subscribers
concerning such risk and, where the risk lies outside the scope
of the measures to be taken by the service provider, of anypossible remedies, including an indication of the likely costs
involved.
Artic!e5
Confidentiality of the communications
1. Member States shall ensure the confidentiality of commu-
nications and the related traffic data by means of a publiccommunications network and publicly available electronic
communications services, through national legislation. In parti-
cular, they shall prohibit listening, tapping, storage or other
kinds of interception or surveillance of communications and
the related traffic data by persons other than users, without theconsent of the users concerned, except when legally authorised
to do so in accordance with Article 1 5(I). This paragraph shall
not prevent technical storage which is necessary for the convey-
ance of a communication without prejudice to the principle of
confidentiality.Ct} OJ L 108, 2 4. 4.200 2, p. 3 3.
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C)-
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Page 1 of I
Postal and Telecommunications Services Act,
1983
Prohibition on interception 98.-(I) A person who-of telecommunicationsmessages.
Ca) intercepts or attempts to intercept, or
(b) authorises, suffers or permits another person to intercept, or
(c) does anything that will enable him or another person to intercept,
telecommunications messages being transmitted by the company or who disclosesthe existence, substance or purport of any such message which has been intercepted
or uses for any purpose any information obtained from any such message shall be
guilty of an offence.
(2) Subsection (I) shall not apply to any person who is acting-
(a) (i) for the purpose of an investigation by a member of the Garda Siocha
of a suspected offence under section 13 of the Post Office(Amendment) Act 1951 (which refers to telecommunications
messages of an obscene, menacing or similar character) on the
complaint of a person claiming to have received such a message, or
(ii) in pursuance of a direction issued by the Minister under section 110 , or
(iii) under other lawful authority, or
(b) in the course of and to the extent required by his operating duties or dutiesfor or in connection with the installation or maintenance of a line,
apparatus or equipment for the transmission of telecommunications
messages by the company.
(3) (a) The company may, with the consent of the Minister, make regulations to
carry out the intentions of this section in so far as concerns members ofits staff.
(b) The Minister, after consultation with the company, may direct the
company to make regulations underparaaph (a) or to amend orrevoke regulations made under that paragraph and the company shall
comply with that direction.
(c) A person who contravenes any regulation under this subsection shall be
guilty of an offence.
(4) (a) The Minister may make regulations prohibiting the provision oroperation of overhearing facilities in relation to any apparatus (including
private branch telephone exchanges) connected to the network of the
company otherwise than in accordance with such conditions as heconsiders to be reasonable and prescribes in the regulations.
(b) A person who contravenes any regulation under this subsection shall be
guilty of an offence.
(5) In this section, "interception" means listening to, or recording by any means,
or acquiring the substance or purport of, any telecommunications message withoutthe agreement of the person on whose behalf that message is transmitted by the
company and of the person intended by him to receive that message.
Government of Ireland. Oireachtas Copyright Material is reproduced with the permission of the House of the
Oireachtas
Accessibility Statement | Privacy Statement Disclaimer
http://www.irishstatutebook.ie/1983/en/act/pub/0024/secOO98,html 02/11/2011
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Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1... Page I of I
Interception of Postal Packets andTelecommunications Messages (Regulation)
Act, 1993
Amendment 13.-(1) The reference in subsection (2) of section 98 of the Act of 1983 to subsection (1) ofof Act of that section shall be deemed to include a reference to section 45 of the Telegraph Act, 1863, the
1983' second paragraph of section 11 of the Post Office (Protection) Act, 1884, and subsection (5)(inserted by subsection (3) of this section) of the said section 98.
(2) The following subsections are hereby inserted after subsection (2) of section 98 of the Actof 1983:
"(2A) A person employed by the company who discloses to any person anyinformation concerning the use made of telecommunications services provided for
any other person by the company shall be guilty of an offence unless the disclosureis made--
(a) at the request or with the consent of that other person,(b) for the prevention or detection of crime or for the purpose of any criminal
proceedings,
(c) in the interests of the security of the State,
( in pursuance of an order of a court,
(e) for the purpose of civil proceedings in any court, or
(/) to another person to whom he is required, in the course of his duty as such
employee, to make such disclosure.
(2B) A request by a member of the Garda Siocharla to a person employed by thecompany to make a disclosure in accordance with the provisions of subsection (2A)
shall be in writing and be signed by a member of the Garda Siochana not below therank of chief superintendent.
(2C) A request by an officer of the Defence Forces to a person employed by the
company to make a disclosure in accordance with the provisions of subsection (2A)shall be in writing and be signed by an officer of the Permanent Defence Force who
holds an army rank not below that of colonel."
(3) The following subsections are hereby substituted for subsection (5) of the said section
98:
"(5) A person who discloses the existence, substance or purport of atelecommunications message that was transmitted by the Minister before the vesting
day and intercepted or who uses for any purpose any information obtained from any
such message shall be guilty of an offence.
(6) In this section intercept' means listen to, or record by any means, in the
course of its transmission, a telecommunications message but does not include suchlistening or recording where either the person on whose behalf the message istransmitted or the person intended to receive the message has consented to the
listening or recording, and cognate words shall be construed accordingly.".
Government of Ireland. Oireachtas Copyright Material is reproduced with the permission of the House of the
OireachtasAccessibility Staten ent Privacy Stateme Disclaimer
http./'Iwww.irishstatutebook.ie/1993/en/act/pub/0010/secOOl3.html 02/ll/2011
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S.I. No. 535/2003 European Communities (Electronic Communications Networks .,. Page 1 of 1
5. (1)Confidentiality ofcommunications
No person shall
use an electronic
communicationsnetwork to store
information or togain access to
informationstored in the
terminalequipment of a
subscriber or userunless -
(a)
(b)
the subscriber or user concerned is
provided with clear andcomprehensive information in
accordance with the Acts, which isprominently displayed and easily
accessible and which, withoutlimitation, includes the purpose of
the processing
the subscriber or user is offered the
right to refuse such processing by
the data controller.
(2) Paragraph 1 does not prevent anytechnical storage of or access to
information for the sole purpose of
carrying out or facilitating the
transmission of a communication over anelectronic communications network or
which is strictly necessary in order toprovlde an information society service
explicitly requested by the subscriber or
user.
Section 98 of the Act of 1983 does notapply to:
technical storage of communications and
the related traffic data which is necessaryfor the conveyance of a communication
without prejudice to the principle of
confidentiallty.
(3)
http://www.irishstatutebook.ie/2003/en/si/0535.html 02/11/2011
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S.I. No. 336/2011 - European Communities (Electronic Comlnunications Networks ... Page I of 1
Con.fldentialit,y of
communications
5. (I) Without prejudice to section 98 of the Act of 1983 and section 2 of the Act of 1993and except where legally authorised under a provision adopted in accordance with Article
15(1) of the Directive on privacy and electronic communications, the listening, tapping,storage or other kinds of interception or surveillance of communications and the related
traffic data by persons other than users, without the consent of the users concerned, is
prohibited.
(2) Paragraph (1) does not-
(a) prevent the technical storage of communications and the related traffic data
which is necessary for the conveyance of a communication without prejudice to theprinciple of confidentiality, and
(b) affect any legally authorised recording of communications and the related traffic
data when carried out in the course of lawful business practice for the purpose of
providing evidence of a commercial transaction or of any other business
communication.
(3) A person shall not use an electronic communications network to store information, orto gain access to information already stored in the terminal equipment of a subscriber or
user, unless
(a) the subscriber or user has given his or her consent to that use, and
(b) the subscriber or user has been provided with clear and comprehensiveinformation in accordance with the Data Protection Acts which--
(i) is both prominently displayed and easily accessible, and
(ii) includes, without limitation, the purposes of the processing of the
information.
(4) For the purpose of paragraph (3), the methods of providing information and giving
consent should be as user-friendly as possible. Where it is technically possible and
effective, having regard to the relevant provisions of the Data Protection Acts, the user'sconsent to the storing of information or to gaining access to information already stored
may be given by the use of appropriate browser settings or other technological applicationby means of which the user can be considered to have given his or her consent.
(5) Paragraph (3) does not prevent any technical storage of, or access to, information forthe sole purpose of carrying out the transmission of a communication over an electronic
communications network or which is strictly necessary in order to provide an information
society service explicitly requested by the subscriber or user.
http://www.irishstatutebook.ie/2011/en/si/0336.html 02/l1/2011