Policy Document Amendments to the legislative basis for the lawful interception of communications Introduction The purpose of this document is to provide some background and context to the announcement on 31st of May this year by the Tánaiste and Minister for Justice and Equality, Ms Frances Fitzgerald TD, of her intention to amend the legislative framework for lawful interception and covert surveillance in the context of the fight against organised crime and terrorism, and the Government’s subsequent decision to provide for a number of amendments to the Interception of Postal Packets and Telecommunications (Regulation) Act 1993 and other associated legislation. The decision to amend this legislation comes at a time of heightened concerns about data protection and the sometimes difficult balance to be struck between the need to preserve and protect the personal privacy of our citizens while also ensuring their safety and security. The Tánaiste recognises the need for a discussion with relevant industries on this issue as a means of ensuring that this process results in legislation that is not only robust and effective, but also proportionate in terms of its scope, and which is mindful of the legitimate concerns of the industries affected by it. The Department very much looks forward to a constructive consultation in this regard. In the context of facilitating that process this document seeks to; 
Set out the role of the Department in ensuring a safe and secure Ireland 
Clearly illustrate the necessity for the amendments intended 
Provide background on the legislation as it stands 
Provide information on the nature of the amendments proposed 
Provide details of future developments in this area Chapter 1 The role of the Department of Justice and Equality Department of Justice and Equality Strategy Statement 2015‐2017 The Strategy Statement sets out the overall high‐level objectives and policy goals of the Department of Justice and Equality for the period 2015 to 2017. It sits at the centre of the Department’s activities. The Statement notes that the Department’s remit covers activities including the security of the State, the protection of life and property and the prevention and detection of crime. The Statement sets out the Department’s vision, that of working for a safer and fairer Ireland by maintaining community and national security, promoting justice and equity, and safeguarding human rights and fundamental freedoms consistent with the common good. There are 5 primary objectives set out in the Statement. Leadership in and oversight of justice and equality policy and delivery A safe, secure Ireland Access to justice for all An equal and inclusive society An efficient, responsive and fair immigration, asylum and citizenship system In seeking to deliver on the objective of a safe and secure Ireland, the following goals have been identified as necessary to achieving this end.  The development of policy and legal frameworks to reduce and prevent crime and develop more secure communities by ensuring coherent crime policy and legislative frameworks are in place which are kept under review and which prioritise the critical reforms necessary.  The development of cross‐sectoral and inter‐agency partnership approaches to preventing crime and the harms caused by crime by efficient and timely processing of commitments on the Government legislative programme, and improved, more coherent, and more effective responses to evolving crime trends through policy and legislative development.  The promotion of national security by enhancing North/South cooperation to counteract terrorist or organised criminal activity.  The enhancement of international cooperation in the Justice and Equality areas by ensuring that arrangements in place governing international criminal cooperation are adequate to meet the challenges of borderless crime and to implement change, where necessary, in order to uphold international standards and cooperation in tackling serious and borderless crime.  The support and development of measures to improve security and equality by effective and efficient international cooperation in order to safeguard Ireland’s reputation for integrity and as a safe and secure destination while being mindful and conscious of international standards. The primary purpose of the Interception of Postal Packets and Telecommunications (Regulation) Act 1993 is to assist in the fight against organised crime and to protect the security of the State. In the context of achieving the goals outlined above, it is essential that the legislation is reviewed and amended in order that it remains fit for purpose. The current amendments will go some way in delivering on this objective. Building a safe and prosperous community Much progress has been made in recent years in offsetting the damage done to this State by the economic crisis. The contribution made by all sectors of this State, both private and public, has been immense in bringing about this recovery. In support of that it has always been the State’s, and as a consequence this Department’s, intention to seek to provide a stable environment free from threat and one which is conducive to economic development and prosperity. Communications technology is advancing at a rapid pace. While the majority of people use these developments for positive purposes those engaged in organised crime, subversive and terrorist activity have not been slow to exploit the possibilities created by these technologies. Law enforcement agencies face considerable challenges on this front in ensuring that citizens remain secure and safe. The Department is determined to play its role in ensuring the State continues its economic recovery. Legislation relating to the combating of serious crime and the safeguarding of the security of the State plays an integral part in ensuring that this objective is met. However, the Department recognises that it cannot do this in isolation. In the context of “developing cross‐sectoral and inter‐agency partnerships” and acknowledging a sharing of interests, the Department clearly recognises the need to engage with all stakeholders in this matter and not least with the relevant areas of the private sector. Chapter 2 Safeguarding the security of the State The role of An Garda Siochana in preventing terrorism An Garda Síochána is charged under the Garda Síochána Acts with providing policing and security services for the State. In the context of safeguarding the internal security of the State this includes;  preventing, detecting and investigating terrorist and terrorist‐related offences;  protecting the State from espionage, sabotage and unlawful acts aimed to subvert or undermine parliamentary democracy or the State’s institutions;  protecting the State from clandestine or deceptive acts of foreign interference detrimental to the State’s interests or that involve a threat to any person;  identifying foreign capabilities, intentions or activities within or relating to the State that impact on the State’s international or economic well‐being;  co‐operating with authorities in other states and international organisations in seeking to preserve international peace, public order and security.  maintaining a daily operational response capability across the State to ensure a graduated response commensurate with the level of threat. The national security structures of An Garda Síochána are incorporated within the overall Garda organisation, under the direction and control of the Garda Commissioner. The role of the Permanent Defence Forces (PDF) The Defence Forces are required to assess all threats and possible threats to the security of the State in order to fulfil its role of providing for the military defence of the State from armed aggression. These threats include the possibility of attack from international terrorists. The Defence Acts describe the Defence Forces obligations in providing for the defence of the State against armed aggression. The requirement to have situational awareness of threats to the security of the State is also provided for. A range of security threats in additional to international terrorism have been identified which include, inter alia:  Inter and Intra‐State Conflict  Cyber Attacks  Emergency and Natural Disasters  Espionage  Transnational Organised Crime Domestic terrorism The threat posed by Northern Ireland related subversives to this State and to Northern Ireland is tangible and is regarded as severe in Northern Ireland. Despite the peace process a number of members of the security and prison services in Northern Ireland have lost their lives. Subversive elements opposed to the peace process continue to actively seek ways to murder and cause material damage in Northern Ireland while their focus in the south is on providing logistical support to facilitate attacks north of the border. It is the Garda assessment that there continues to be a real and persistent threat from the activities of so‐called 'dissident' republican groups. These groups remain resolutely opposed to peace and are prepared to use violence to achieve their aims and, indeed, to support their lifestyles. In the context of promoting security north and south of the border, An Garda Síochána is constantly engaged in intensive operational efforts against these groups and has had notable success in thwarting their actions. Many of these successful actions were underpinned by effective intelligence gathering. Co‐operation with the Police Service of Northern Ireland is central to these efforts and has never been closer. Constant contact is maintained and intelligence is shared in both directions with a view to making arrests and ensuring successful prosecutions of those involved in terrorist activity. There is a strong and resolute commitment on the part of the two services to work together and nowhere is this more important than in the area of security co‐
operation. International terrorism The threat posed by international terrorism has become all too clear in light of recent events in Europe and elsewhere. The current threat to Ireland from this source is assessed as being that while an attack is possible, it is not considered likely. While Al Qaida achieved worldwide notoriety as a result of the 9/11 attacks, Islamic State (IS) has, to an extent, eclipsed this grouping and has become synonymous with appalling acts of murder and brutality. IS is also noteworthy in that it has quickly grasped the opportunities that modern technologies provide in the context of getting its message to a wider audience. Since 2011, Europe has seen in excess of 4500 European citizens travelling to the conflict zones of North Africa and the Middle East. Many have returned and some have participated in the carrying out of attacks in Europe. In addition to being aware of some individuals who have travelled from this jurisdiction, An Garda Siochana is aware of individuals based in this State who are engaged in the promotion and facilitation of international terrorism. Given the nature of the international terrorist threat, An Garda Síochána co‐operates as a matter of routine with its counterpart services in other states and with relevant international bodies in respect of countering the threat. The recent progress made in the military campaigns against IS will at some stage bring an end to the “Caliphate” both physically and conceptually. The end of the Caliphate may result in the large displacement of former IS members, many of whom may seek to return to Europe. In that regard, observers have noticed a change in IS rhetoric. Where once there was glorification of its territorial conquests and ambitions, the message has now resorted to more “traditional” messaging and in particular the idea of “personal jihad” and the encouragement of self‐motivated attacks on Europe and the West “If you can kill a disbelieving American or European — especially the spiteful and filthy French — or an Australian or a Canadian, or any of the other disbelievers waging war (against us), including the citizens of the countries that entered into a coalition against the Islamic State, then rely upon Allah and kill them in any manner or way however it may be. Smash his head with a rock, or slaughter him with a knife or run him over with your car or throw him down from a high place or choke him or poison him,” ‐ (IS Spokesman Mohammed AL‐Adani) Recent trends in terrorist attacks highlight that many of the perpetrators are self‐
motivated and relatively unknown before such an event. The Islamic State group has claimed that it has a considerable number of sleeping operatives in Europe who they can call upon to carry out attacks. There is evidence to suggest that some who have travelled to the conflict areas to join Islamic State have been returned to their home States for just that purpose. Many States, even those with the most sophisticated security apparatuses, have found themselves vulnerable to attack and have seen some appalling acts of terrorism in recent times. It is therefore essential that the security services and forces of law and order are as best equipped as possible to address these attacks both in terms of material resources and access to intelligence. The assistance of the communications sector in this area is critical. Chapter 3 Intelligence as an investigative tool In seeking to ensure the success of criminal investigations and protecting the security of this State the gathering of intelligence is clearly of paramount importance. The working definition of intelligence is “information gathered, analysed and recorded with the objective of providing assistance in the investigation of crime and the prosecution of individuals and groups concerned, whether the offenders are politically motivated or not”. Intelligence tends to be gleaned from a number of different strands including;  Information from mainstream policing activities.  Covert methodologies, including Telephonic Interception and Covert Surveillance activities.  Bilateral and multi‐lateral exchanges with other agencies, both police and security services, subject to strict rules and protocols.  Open Source material such as newspapers, periodicals, internet, and the broadcast media. While possibly justifiable concerns might be voiced over an intrusion into the privacy of innocent people; in the debate on privacy versus security, most would accept that a proportionate and lawful intrusion into the privacy of a very specific group of individuals engaged in terrorism or serious crime is not an unreasonable price to pay in seeking to safeguard the security of the state and the safety of its citizens. It is appropriate then to stress that mass surveillance has never been a feature of the lawful interception framework in this State and that that there are no intentions to bring this about in the context of the legislation now being proposed. However, it must be acknowledged that a failure to provide for an effective targeted interception regime may result in a negative impact on the part of the relevant State agencies to protect this State and its citizens. Chapter 4 Serious Crime and Counter Terrorism Legislation Ireland has a substantial body of law, much of it of long‐standing, aimed at safeguarding the security of the State and countering terrorism. The main legislation in this regard is the Offences Against the State Acts 1939‐1998 which set out a range of substantive offences relating to the security of the State, powers of search, arrest and detention relating to those offences and arrangements for the operation of the Special Criminal Court. It has been cast primarily to address the domestic security threat but its provisions have application to other sources of terrorist threat. The Criminal Justice (Terrorist Offences) Acts 2005 and 2015 also set out a range of substantive terrorist and terrorist‐related offences with a particular focus on international terrorism and they give effect to EU and other international obligations in respect of countering terrorism. The EU instruments incorporated into this legislation are currently being updated in the form of an EU Directive on combating terrorism on which agreement is anticipated later this year. Certain of the offences in question (notably relating to foreign terrorist fighters) are also the subject of Council of Europe Conventions that have also been incorporated into the EU legal framework. The financing of terrorism is specifically covered by the Criminal Justice (Terrorist Offences) Acts 2005 and the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 and other relevant Acts. The law in this regard is based closely on EU law and the Anti Money Laundering and Terrorist Financing Directive is currently being updated. The prevention and investigation of terrorism is supported in particular by laws relating to surveillance and the interception of communications.  The Criminal Justice (Surveillance) Act 2009 provides the Garda and Defence Forces authorities with powers to carry out covert electronic surveillance of people and things, including on private property, subject to judicial authorisation and the placing of tracking devices.  The Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, supported by provisions in the Postal and Telecommunications Services Act 1983, provides the current framework for the lawful interception of communications by the Garda and Defence Forces’ authorities subject to an authorisation in each individual case by the Minister for Justice and Equality.  The Communications (Retention of Data) Act 2011 provides the legal framework for the Garda and Defence Forces authorities to access meta‐data relating to phone and internet communications, such as the traffic and location data of mobile telephones or subscriber data. Its provisions are available in respect of safeguarding the security of the State. The legal framework for terrorist offences and investigatory powers is under constant review. A particular focus is on ensuring that investigatory powers in respect of modern means of communications can be enabled to reflect developments in technology for criminal investigations and the requirements of international co‐operation. The current amendments to the law on interception are being prepared in the context of seeking to achieve this. Chapter 5 Lawful Interception – the current legislative framework Introduction The legislative basis for lawful interception in this State is built on three Acts. These are the Postal and Telecommunications Services Act 1983, the Interception of Postal Packets and Telecommunications (Regulation) Act 1993 and the Criminal Justice (Mutual Assistance) Act 2008 (Part 3 specifically). Postal and Telecommunications Services Act 1983 The 1983 Act and Section 110 specifically provides a legislative basis for the Minister for Communications, Climate Action and Environment (described as Minister for Communications from hereon) to issue a direction to a relevant service provider to comply with warrants issued by the Minister for Justice and Equality seeking the interception of specific communications. As currently stands, only authorised undertakings ‐ effectively telecommunications service providers ‐ are subject to Direction. Interception of Postal Packets and Telecommunications (Regulation) Act 1993 The Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 provides the legislative basis in Ireland for the interception of postal packets and telecommunications messages. Sections 4 and 5 of the Act provides that an authorisation may only be granted for interception for the purposes of the investigation of serious crime or for the purposes of protecting the security of the State in the case of An Garda Siochana, for the purposes of protecting the security of the State in the case of the Permanent Defence Forces or for the investigation of offences allegedly omitted by a member of An Garda Siochana in the context of the Garda Siochana Ombudsman Commission (GSOC). The authorisation can only be granted as a last resort where other more conventional forms of investigation have failed to yield results. It is important to note that the focus of the Act is very specific and currently provides that a warrant authorising interception must specify a specific postal address or telephone number. The Act in no way provides for mass surveillance nor is that the intention where the amendment of this legislation is concerned. The duration of a warrant is time‐bound at three months. If there is still a necessity for an interception to remain in place it must be renewed by the Minister for Justice and Equality upon application by the Garda Commissioner, the Defence Forces Chief of Staff or the Chairperson of GSOC. The 1993 Act also makes provision for independent judicial oversight of its operation by a serving Judge of the High Court who is designated for this purpose. The Designated Judge reports at least annually to the Taoiseach on the operation of the legislation and these reports are laid before the Houses of the Oireachtas. The Act also provides for a complaints mechanism whereby an individual who believes he or she has been the subject of an authorisation under the relevant provisions of the Act may apply to the independent Complaints Referee for an investigation into the matter. Many commentators in this sphere have pointed to the lack of transparency around the operations of this legislation. In an Irish context there have been criticisms that the reports of the Designated Judges have lacked detail and that little or no statistical information is available in terms of the usage of the Act. This has, unfairly, been used to support contentions that the oversight regime is, therefore, weak or flawed. It has to be recognised that a high degree of secrecy must be attached to the operation of this legislation in order for it to be effective. What is important is that it is subject to independent oversight. The Designated Judge and the Complaints Referee provide such independent oversight by the very nature of their judicial roles While the reports do not go into specific detail that factor cannot be construed as meaning the level of oversight is not effective. Part 3 ‐ Criminal Justice (Mutual Assistance) Act 2008 Part 3 of the Act of 2008 provides a legislative basis for cooperation between EU member States in the area of lawful interception. It allows another member State to request Ireland to carry out interception of communications on Irish soil and vice versa. A request from another Member State can only be acted upon in the case of a serious criminal investigation and where the interception would be regarded as lawful under Irish law. Details of the nature of that investigation must be provided by the requesting State in such a manner as to allow for the making of an informed decision as to whether the request complies with the relevant domestic legislation. The provisions of the 2008 Act cannot be used for the purposes of intelligence gathering. For a request for Mutual Assistance to be lawful, it must be lawful if made in a domestic context, i.e. in compliance with the Act of 1993. Chapter 6 Legislative amendments Introduction There are in the region of 50 amendments intended to the lawful interception legislative framework. Many of these are technical and consequential to the more substantive amendments intended for the legislation and it is therefore not intended to go into the nature of each of these in this document. While the final form of these amendments has yet to be settled, this Chapter seeks to provide some insight into the changes being considered. Why amend the Act? There are a number of reasons why lawful interception legislation requires amendment. Communications services delivered over the internet are not covered by the current legislation as the powers of direction currently vested in the Minister for Communications are effectively restricted to Telecoms and Postal Service providers. This means that communications services such as those provided by the major Internet based entities cannot be made subject to the legislation. In addition, the terminology in the Act of 1993 does not adequately reflect the modern face of communications, particularly where defining “communications” and communications addresses is concerned. As the legislation stands Ireland can only comply to a limited extent with requests from other EU Member States for mutual legal assistance where interception is concerned. The fact of the matter is that mobile devices are now used to communicate in a much wider array of ways than simply by texting or holding a telephone conversation. The legislation has not kept pace with these developments and needs to be changed. Amendments to the Postal and Telecommunications Services Act 1983 Section 110 of the Postal and Telecommunications Services Act 1983 provides a legislative basis for the Minister for Communications to direct a service provider to comply with an authorisation for interception signed by the Minister for Justice and Equality. Background to Section 110 Section 110 of the Act of 1983 has undergone a number of amendments since originally enacted. Section 7(2) of the Postal and Telecommunications Services Act 1999 restricted the scope of Section 110 insofar as it related to providers of telephone services to section 98 of the Act of 1983 (unlawful interception) and the Act of 1993. Section 54(2) of the Communications Regulation (Postal Services) Act 2011 performs the same function in respect of postal service providers. As a consequence, the only function Section 110 now has is in the context of allowing the Minister for Communications to direct relevant entities to provide interception services to the State. Authorised undertakings In 2003, the telecommunications sector within the EU was deregulated. The Authorisation Directive (Directive 2002/20/EC) on the authorisation or electronic communications networks and services) set out the conditions through which telecommunications services and networks may be provided, including the conditions which may be applied to service providers. In particular, the Authorisation Directive replaces licences with an authorisation regime. “Authorised undertaking” is the term used by the State’s Commission for Communications Regulation, ComReg, for companies which have registered under its authorisation scheme. ComReg is the statutory body responsible for the regulation of the electronic communications sector (telecommunications, radio communications and broadcasting transmission) and the postal sector. ComReg operates a general authorisation scheme to facilitate entry into the communications market in Ireland Under Section 4 (1) of the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2011 (S.I. No. 335 of 2011), any person intending to provide an electronic communications network or service is required before doing so to notify the ComReg of his or her intention to provide such a service. General Authorisations replaced the basic and general telecoms licences and some individual wireless telegraphy licences, issued prior to July 2003. The term “licensed operator” therefore, which replaced the term “company” in the 1983 Act (by virtue of the Postal and Telecommunications (Amendment) Act 1999, has in turn been replaced by the term “authorised undertaking”. Authorised undertaking therefore covers all electronic communication service and electronic communication networks (in accordance with SI 333/2011) and captures all telecommunication operators currently covered by the 1993 Act. It is accepted that the entities who are now the primary focus of this amending legislation are not covered by the definition of authorised undertaking (as defined in SI 335/2011 European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2011), and as such do not fall under the remit of the Communications Regulator. Such companies therefore are not under any obligation to comply with directions under section 110 of the 1983 Act. Amendments to Section 110 of the Postal and Telecommunications Services Act 1983 Section 110 once amended will provide that Information Society Services1 as defined in EC Directive 98/34/EC will be subject to the direction of the Minister for 1
See EC Directive 98/34/EC of the European Parliament and Council of 22nd June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of Communications to comply with the lawful interception framework. The Department is of the view that this definition will cover internet referencing services and social media. In addition, a general provision that any other entity providing a publicly available means of communication over an electronic communications network will likewise be open to Direction following the amending of this section of the Act of 1983. Amendments to the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 A number of amendments will be made to this legislation to assist in its modernisation. The principal amendments are outlined below. Amendment to definition of “communication” in Section 1 of the Act of 1993 The definition of communication will be revised to include communication types other than telephone conversations and postal packets. New definition of “communications address” to be provided for in Section 1 of the Act of 1993 The Act as originally drafted did not include a definition of communications address. The Act once amended will provide that a communications address will be something that is used in directing a communication to its intended destination and / or identifying the origin of a communication. New definition of “interception” in Section 1 of the Act of 1993 It has been considered appropriate to amend the current definition of interception to reflect modern communications characteristics. rules on Information Society Services and Paragraph 18 of the Preamble of Directive 2000/31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) “Interception” is effectively an action, the effect of which is to make some or all of the content of a communication available to a person and an appropriate amendment will be made along those lines Protection of personal data The European Court of Justice has indicated on many occasions the necessity for States to protect personal data particularly in the context of where it is being accessed for law enforcement purposes or for the purposes of protecting the security of the State. A new offence of unlawful interception which will exclude legitimate actions, for example, actions carried out in the context of maintenance work by a service provider will be incorporated into the Act. The 1993 Act, as it stands, already places an obligation on the Minister to limit to the minimum necessary the disclosure of intercepted content. The term “necessary” means necessary for the purposes of the detection of serious offences or safeguarding the security of the State. Encryption The subject of encryption has proved difficult for law enforcement and security agencies to address. While on the one hand the State would encourage all of its citizens to safeguard their privacy, protect their personal data and ensure their businesses are secure from unlawful intrusion, the fact remains that encryption should not be a means by which criminals or terrorists can plan the harm of our citizens or society. The Department is open to a dialogue on this issue as it believes there is much to learn from industry on how best this matter can be dealt with. However, the new legislation intends to place a responsibility on industry to cooperate, insofar as is possible, with the provisions of this legislation or provide an explanation as to why this cannot be so. Amendments to Part 3 of the Criminal Justice (Mutual Assistance) Act 2008. Part 3 of the Act of 2008 deals with mutual and legal assistance in the area of lawful interception. The amendments to this Act will be technical in nature and primarily to terminology which will be updated to reflect the revised terminology in the amended Act of 1993. Part 3 of the Act of 2008 provides for mutual assistance amongst EU member States where the interception of communications is sought in the case of the investigation of serious offences. Chapter 7 Lawful interception and the ECHR The European courts have ruled on many occasions with regard to the legality of communications interceptions and their interference with the ECHR. The Court has ruled that there is on occasion, a necessity for interception but that it must be on a legal basis and accompanied by several safeguards. The purpose of this chapter is to outline the measures prescribed by the courts and to demonstrate how Irish legislation complies with these requirements. (a) There has to be a legal basis for the interception of communications. The 1993 Act provides the legal basis for interception and indicates when it may be utilised (Sections 2, 4, and 5) (b) The legal basis has to be publicly accessible. The Act is available to the public and clearly details the type of offences and situations whereby interception may be utilised (Sections 2, 4, and 5) (c) The nature of offences that give rise to an interception order must be specified. The nature of offences is specified in the Act under Sections 4 & 5. (d) The category of persons liable to have their phone tapped must be specified. The Act specifies the category of offences rather than persons but clearly the category of persons to be targeted is implicit from defining the nature of the offences that come within the scope of the legislation. (e) There must be a defined time limit on the duration of an interception. Section 2 (5) specifies the duration of the authorisation (not more than three months) Section 2 (6) states that the warrant may be extended (not more than three months) (f) There must be a procedure in place for examining, using and storing the data obtained. Section 12(1) (a) (ii) limits the disclosure of the contents of any communication which has been intercepted pursuant to an authorisation. The amendments will provide for a new offence of unlawful interception. (g) Precautions must be taken when communicating the data to other parties. Section 12 (1) (a) (ii) limits to the minimum necessary the disclosure of the contents of any communication which has been intercepted pursuant to an authorisation. The amendments will provide for a new offence of unlawful interception. (h) The circumstance under which the recordings or tapes may or must be erased must be provided for. Section 12(1) (b) (ii) provides that copies of communications are destroyed as soon as their retention is no longer necessary (i) There must be effective control mechanisms to ensure that the law is complied with. As per Section 2, only the Minister may authorise the interception and he or she must be satisfied that Sections 4 & 5 are complied with and that there is no contravention of Section 6. The Minister may also consult with the designated judge on authorisations (Section 2 (7)) and in that regard Section 8 of the Act provides for a designated judge to oversee the operation of the legislation. (j) Oversight mechanisms must be in line with generally accepted democratic principles Section 8 of the Act provides for an independent judge of the High Court who may review cases where an authorisation has been issued Section 9 (3) of the Act provides for a Complaints Referee whereby “a person who believes that a communication sent to or by him has been intercepted may apply to the Referee for an investigation under this section into the matter.” (k) The authorisation process has to be carried out by an authority independent from the one which carries out the measure. It is the Minister for Communications who directs service providers to comply with the legislation under Section 110 of the Postal and Telecommunications Services Act. As per Section 2 of the Act of 1993, the Minister for Justice and Equality must authorise the interception and must be satisfied that Sections 4 & 5 are complied with and not in contravention of Section 6. The Minister for Justice and Equality may also consult with the designated judge on authorisations (Section 2 (7)) Section 8 of the Act provides for an independent judge who can review cases where an authorisation is issued (post factum supervision) Chapter 8 Review of investigatory powers by the Law Reform Commission The primary purpose of these legislative amendments is to address an immediate shortcoming in the 1993 Act as it currently stands in that it does not provide for lawful interception of email and other commonly used forms of communication over the internet. In addressing this matter the Department seeks to enhance the ability of An Garda Siochana, the Defence forces and GSOC in carrying out their statutory functions. Furthermore, the amendments will allow the State to comply in a more comprehensive manner with its obligations under Part 3 of the Criminal Justice (Mutual Assistance) Act 2008. Nevertheless, in addressing these issues the Department is mindful that the current lawful interception framework has not kept pace with more recent developments in the field of communications and would therefore benefit from a comprehensive review with the intention of a more fundamental reform in the future. It is also clear that in recent times the security versus privacy debate has received notice, particularly arising from recent judgements and opinions by the ECJ in relation to various mechanisms allowing law enforcement and security agencies access to private personal data and the various revelations concerning the activities of some international security agencies. While clearly the findings of the courts must be observed, some of the public debate and commentary has tended to cloud and distort the factual position and have caused difficulty where States, in a legitimate desire to protect the safety of their citizens, have sought to implement lawful and proportionate measures to monitor the illegal activities of suspected and known terrorists and serious criminals. In making its decision to amend the legislation, the Government noted the intention of the Tánaiste to ask the Attorney General to request the Law Reform Commission to carry out a review of the law on investigatory powers relating to communications This process will, in due course, give an opportunity to all interested parties to provide their perspective on this issue. The protection of our democratic way of life is the primary purpose of this legislation and the Department believes it is essential that its formulation observes the fundamental rights and principles it seeks to serve.