State has known about data legal issues for years, an expert says

The State’s failure to reform its data retention laws is the reason why it is “even possible” that Graham Dwyer could overturn his murder conviction, a data privacy expert said.

Dr Eoin O’Dell, an assistant professor of law at Trinity College Dublin, reacted to an opinion of the European Court of Justice adviser supporting important elements of Dwyer’s challenge to Ireland’s mobile phone data retention regime.

He said the State had been aware of problems with the data access and retention regime for at least seven years, following a case taken by Digital Rights Ireland, and while a bill to address the problems was introduced, it was slow to implement the necessary changes. .

If approved by the ECJ, the opinion would have important implications for the prosecution of a serious crime across the EU. It may also affect Dwyer’s separate appeal, yet to be heard by the Court of Appeal, against his 2015 conviction for the 2012 murder of child care worker Elaine O’Hara.

Mobile phone data retained by telecom providers and accessed by gardaí, including that relating to two phones, the “master” and “slave” phones, was an important part of this case.

The Court of Appeal will decide whether or not the security of his conviction depended on the telephone evidence. Sources said they did not believe the opinion would lead to Dwyer’s conviction being sidelined.

Not mandatory

The opinion of Spanish Attorney General Campos Sánchez-Borona confirmed, in strong terms, the ECJ’s decisions that general and indistinguishable retention of electronic communications traffic and location data was allowed only where there is a “serious threat to national security”.

Although the opinion is not binding, it seems unlikely, given its jurisprudence, including judgments issued recently like last month, that the ECJ’s final judgment will not match it.

This would mean that the Supreme Court would be limited in how it could finalize the State’s appeal against the 2018 Court of Appeal finding that the 2011 law, under which the telephone data used in Dwyer’s trial were accessed and retained, should be removed as being in violation. of EU law.

A source said that would have a “nuclear” impact on how the Garda investigates a crime because the force is heavily dependent on telephone data. However, it was expected that the ECJ’s view would be more likely to have an impact on the future rather than past investigations.

Senior Garda officials believe a more limited right of access to mobile phone data, stretching back just 12 months, is likely to emerge from the case for criminal investigators in Ireland.

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