Communications (Retention of Data) Act 2011
Acts of the Oireachtas
Source: Acts of the Oireachtas

num: 1
paragraphs: — (1) In this Act—
“Act of 1993” means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 ;
“cell ID” means the identity of the cell from which a mobile telephony call originated or in which it terminated;
“data” means traffic data or location data and the related data necessary to identify the subscriber or user;
“designated judge” means the judge of the High Court designated by the President of the High Court under section 8 of the Act of 1993;
“disclosure request” means a request to a service provider under section 6 for the disclosure of data retained in accordance with section 3 ;
“ Garda Commissioner” means the Commissioner of the Garda SÃ­ochÃ¡na;
“Minister” means the Minister for Justice, Equality and Law Reform;
“processing” has the same meaning as in the Data Protection Act 1988 ;
“Referee” means the holder of the office of Complaints Referee under the Act of 1993;
“revenue offence” means an offence under any of the following provisions that is a serious offence:
(a) section 186 of the Customs Consolidation Act 1876 ;
(b) section 1078 of the Taxes Consolidation Act 1997 ;
(c) section 102 of the Finance Act 1999 ;
(d) section 119 of the Finance Act 2001 ;
(e) section 79 (inserted by section 62 of the Finance Act 2005 ) of the Finance Act 2003 ;
(f) section 78 of the Finance Act 2005 ;
num: 2
paragraphs: — This Act does not apply to the content of communications transmitted by means of fixed network telephony, mobile telephony, Internet access, Internet e-mail or Internet telephony.
num: 3
paragraphs: — (1) A service provider shall retain data in the categories specified in Schedule 2 , for a period of 2 years in respect of the data referred to in Part 1 of Schedule 2 and for a period of one year in respect of the data referred to in Part 2 of Schedule 2 .
(2) The periods of retention referred to in subsection (1) commence—
(a) in the case of data that before the passing of this Act were the subject of a data retention request under Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 , on the date before the passing of this Act on which the data were first processed by the service provider,
(b) in any other case, on the date on or after the passing of this Act on which the data were first so processed.
(3) Data retained in accordance with subsection (1) shall be retained in such a way that they may be disclosed without undue delay pursuant to a disclosure request.
num: 4
paragraphs: — (1) A service provider who retains data under section 3 (1) shall take the following security measures in relation to the retained data:
(a) the data shall be of the same quality and subject to the same security and protection as those data relating to the publicly available electronic communications service or to the public communications network, as the case may be;
(b) the data shall be subject to appropriate technical and organisational measures to protect the data against accidental or unlawful destruction, accidental loss or alteration, or unauthorised or unlawful storage, processing, access or disclosure;
(c) the data shall be subject to appropriate technical and organisational measures to ensure that they can be accessed by authorised personnel only;
(d) the data, except those that have been accessed and preserved, shall be destroyed by the service provider after—
num: 5
paragraphs: — A service provider shall not access data retained in accordance with section 3 except—
(a) at the request and with the consent of a person to whom the data relate,
(b) for the purpose of complying with a disclosure request,
(c) in accordance with a court order, or
(d) as may be authorised by the Data Protection Commissioner.
num: 6
paragraphs: — (1) A member of the Garda SÃ­ochÃ¡na not below the rank of chief superintendent may request a service provider to disclose to that member data retained by the service provider in accordance with section 3 where that member is satisfied that the data are required for—
(a) the prevention, detection, investigation or prosecution of a serious offence,
(b) the safeguarding of the security of the State,
(c) the saving of human life.
(2) An officer of the Permanent Defence Force not below the rank of colonel may request a service provider to disclose to that officer data retained by the service provider in accordance with section 3 where that officer is satisfied that the data are required for the purpose of safeguarding the security of the State.
(3) An officer of the Revenue Commissioners not below the rank of principal officer may request a service provider to disclose to that officer data retained by the service provider in accordance with section 3 where that officer is satisfied that the data are required for the prevention, detection, investigation or prosecution of a revenue offence.
(4) A disclosure request shall be made in writing, but in cases of exceptional urgency the request may be made orally (whether by telephone or otherwise) by a person entitled under subsection (1), (2) or (3) to make the request.
(5) A person who makes a disclosure request orally shall confirm the request in writing to the service provider within 2 working days of the request being made.
num: 7
paragraphs: — A service provider shall comply with a disclosure request made to the service provider.
num: 8
paragraphs: — Where all or part of the period specified in a data retention request coincides with the period during which any of the data specified in the request may, in accordance with law, be processed for purposes other than those specified in the request, nothing in section 6 shall prevent those data from being processed for those other purposes.
num: 9
paragraphs: — (1) The Garda Commissioner shall prepare and submit a report to the Minister in respect of data specified in Schedule 2 that were the subject of all disclosure requests made under section 6 (1) during the relevant period.
num: 10
paragraphs: — (1) A contravention of section 6 in relation to a disclosure request shall not of itself render that disclosure request invalid or constitute a cause of action at the suit of a person affected by the disclosure request, but any such contravention shall be subject to investigation in accordance with the subsequent provisions of this section and nothing in this subsection shall affect a cause of action for the infringement of a constitutional right.
(2) A person who believes that data that relate to the person and that are in the possession of a service provider have been accessed following a disclosure request may apply to the Referee for an investigation into the matter.
(3) If an application is made under this section (other than one appearing to the Referee to be frivolous or vexatious), the Referee shall investigate—
(a) whether a disclosure request was made as alleged in the application, and
(b) if so, whether any provision of section 6 has been contravened in relation to the disclosure request.
(4) If, after investigating the matter, the Referee concludes that a provision of section 6 has been contravened, the Referee shall—
(a) notify the applicant in writing of that conclusion, and
(b) make a report of the Referee’s findings to the Taoiseach.
(5) In addition, in the circumstances specified in subsection (4), the Referee may, if he or she thinks fit, by order do either or both of the following—
(a) direct the Garda SÃ­ochÃ¡na, the Permanent Defence Force or the Revenue Commissioners to destroy the relevant data and any copies of the data,
(b) make a recommendation for the payment to the applicant of such sum by way of compensation as may be specified in the order.
(6) The Minister shall implement any recommendation under subsection (5)(b).
(7) If, after investigating the matter, the Referee concludes that section 6 has not been contravened, the Referee shall notify the applicant in writing to that effect.
(8) A decision of the Referee under this section is final.
(9) For the purpose of an investigation under this section, the Referee is entitled to access, and has the power to inspect, any official documents or records relating to the relevant application.
(10) Any person who was concerned in, or has information relevant to, the making of a disclosure request in respect of which an application is made under this section shall give the Referee, on his or her request, such information relating to the request as is in the person’s possession.
num: 11
paragraphs: — Section 8 of the Act of 1993 is amended by the substitution of the following for subsection (1):
“(1) The President of the High Court shall from time to time after consulting with the Minister invite a person who is a judge of the High Court to undertake (while serving as such a judge) the duties specified in this section and section 12 of the Communications (Retention of Data) Act 2011 and, if the invitation is accepted, the Government shall designate the judge for the purposes of this Act and the Communications (Retention of Data) Act 2011.
(1A) Subsection (1) does not affect the functions of the Data Protection Commissioner under section 10 of the Data Protection Act 1988 .”.
num: 12
paragraphs: — (1) In addition to the duties assigned under section 8 of the Act of 1993, the designated judge shall—
(a) keep the operation of the provisions of this Act under review,
(b) ascertain whether the Garda SÃ­ochÃ¡na, the Permanent Defence Force and the Revenue Commissioners are complying with its provisions, and
(c) include, in the report to the Taoiseach under section 8(2) of the Act of 1993, such matters relating to this Act that the designated judge considers appropriate.
(2) For the purpose of carrying out the duties assigned under this section, the designated judge—
(a) has the power to investigate any case in which a disclosure request is made, and
(b) may access and inspect any official documents or records relating to the request.
(3) Any person who was concerned in, or has information relevant to, the preparation or making of a disclosure request shall give the designated judge, on his or her request, such information relating to the request as is in the person’s possession.
(4) The designated judge may, if he or she considers it desirable to do so, communicate with the Taoiseach or the Minister concerning disclosure requests and with the Data Protection Commissioner in connection with the Commissioner’s functions under the DataProtection Acts 1988 and 2003.
num: 13
paragraphs: — (1) Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 is repealed.
(2) Notwithstanding the repeal under subsection (1), data that were the subject of a data retention request under Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 before that repeal may be adduced in evidence in proceedings conducted after that repeal subject to the provisions of this Act applying and having effect.
num: 14
paragraphs: — This Act may be cited as the Communications (Retention of Data) Act 2011.