Communications (Retention of Data) (Amendment) Act 2022
Acts of the Oireachtas
Source: Acts of the Oireachtas

num: 1
paragraphs: In this Act, “Principal Act” means the Communications (Retention of Data) Act 2011 .
num: 2
paragraphs: Section 1(1) of the Principal Act is amended—
(a) by the substitution of the following definition for the definition of “user”:
“‘user’ means a person who is using an electronic communications service or other means of electronic communication, for private or other purposes—
(a) whether or not that electronic communications service or other means of electronic communication is publicly available, and
(b) whether or not that person has subscribed to the service;”,
and
(b) by the deletion of the definition of “disclosure request”; and
(c) by the insertion of the following definitions:
“‘authorising judge’ means a judge of the District Court designated under section 12J(1);
‘disclosure requirement’ means a requirement made of a service provider under section 6, 6F, 7C or 7D;
‘electronic communications network’ means transmission systems and, where applicable—
(a) switching equipment or routing equipment, and
(b) other resources,
including network elements which are not active, which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, and such conveyance includes the use of—
(i) satellite networks,
(ii) fixed terrestrial networks (both circuit-switched and packet-switched, including internet),
(iii) mobile terrestrial networks,
(iv) electricity cable systems to the extent that they are used for the purpose of transmitting signals,
(v) networks used for either or both radio and television broadcasting, and
(vi) cable television networks,
irrespective of the type of information conveyed;
‘electronic communications service’ means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services, publicly available telephone services and transmission services in networks used for broadcasting, but does not include—
(a) services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, and
(b) information society services within the meaning of Article 1 (inserted by Directive 98/48/EC of 20 July 19981 ) of Directive 98/34/EC of 22 June 19982 which do not consist wholly or mainly in the conveyance of signals on electronic communications networks;
‘internet source data’ means the following data necessary to trace and identify the source of a communication by internet access, internet email or internet telephony:
(a) the Internet Protocol (IP) address, whether dynamic or static, allocated by the service provider to the source of a communication;
(b) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address was allocated at the time of the communication;
num: 3
paragraphs: The Principal Act is amended by the substitution of the following section for section 3—
“Obligation to retain user data
num: 3
paragraphs: (1) A service provider shall retain, in accordance with section 12D, user data for a period of one year, or such period as may be prescribed in accordance with subsection (2), from the date on which the data were first processed by the service provider concerned.
(2) The Minister may, for the purposes of subsection (1), prescribe such period (which may be less than one year, and which shall not exceed two years) as he or she considers necessary for, and proportionate to, the purposes of—
(a) preventing, detecting, investigating or prosecuting offences, including revenue offences and competition offences,
(b) achieving the objectives specified in section 6(1)(b).
(3) The Minister may, in prescribing a period under subsection (2), prescribe different periods for different types of data specified in the definition of ‘user data’ in this Act.”.
num: 4
paragraphs: The Principal Act is amended by the insertion of the following sections after section 3—
num: 5
paragraphs: The Principal Act is amended by the substitution of the following section for section 6—
“Requirement to disclose user data
num: 6
paragraphs: (1) A member of the Garda SÃ­ochÃ¡na not below the rank of superintendent may require a service provider to disclose to that member user data in the possession or control of the service provider—
(a) where the member believes that the data relate to a person whom the member suspects, on reasonable grounds of—
(i) having committed an offence, or
(ii) presenting an actual or potential threat to the security of the State,
or
(b) where the member has reasonable grounds for believing that the data are otherwise required for the purpose of—
(i) preventing, detecting, investigating or prosecuting offences,
(ii) safeguarding the security of the State,
(iii) protecting the life or personal safety of a person, in circumstances where the member believes that there is a serious risk to the life or personal safety of the person, or
(iv) determining the whereabouts of a missing person.
(2) A member of the Permanent Defence Force not below the rank of lieutenant colonel may require a service provider to disclose to that member user data in the possession or control of the service provider—
(a) where the member believes that the data relate to a person whom the member suspects, on reasonable grounds, of presenting an actual or potential threat to the security of the State, or
(b) where the member has reasonable grounds for believing that the data are otherwise 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 require a service provider to disclose to that officer user data in the possession or control of the service provider—
(a) where the member believes that the data relate to a person whom the officer suspects, on reasonable grounds, of having committed a revenue offence, or
(b) where the officer has reasonable grounds for believing that the data are otherwise required for the purpose of preventing, detecting, investigating or prosecuting a revenue offence.
(4) An officer of the Competition and Consumer Protection Commission not below the rank of principal officer may require a service provider to disclose to that officer user data in the possession or control of the service provider—
(a) where the member believes that the data relate to a person whom the officer suspects, on reasonable grounds, of having committed a competition offence, or
(b) where the officer has reasonable grounds for believing that the data are otherwise required for the purpose of preventing, detecting, investigating or prosecuting a competition offence.
(5) Subject to subsection (6), a requirement under this section shall be given to a service provider by notice in writing.
(6) If the member or officer concerned considers that the circumstances that warrant the making of a requirement under this section are of exceptional urgency, he or she may make such a requirement other than in writing.
(7) A member or officer who makes a requirement under this section in accordance with subsection (6) shall, not later than 2 days after the making of the requirement, give to the service provider of whom the requirement was made a notice in writing—
(a) specifying the requirement, and
(b) certifying that the requirement was made other than in writing due to the existence of circumstances of exceptional urgency.
(8) A service provider shall, as soon as practicable after a notice under subsection (5) is given to him or her or, where applicable, a requirement is made of him or her under subsection (6), comply with the requirement concerned.”.
num: 6
paragraphs: The Principal Act is amended by the insertion of the following section after section 6A:
num: 7
paragraphs: The Principal Act is amended by the insertion of the following sections after section 7:
num: 8
paragraphs: The Principal Act is amended by the insertion of the following sections after section 12:
“Offences
12A. (1) A person who contravenes sections 3(1), 3A(7), 3B(1), 6(8), 6F(2), 7A(15), 7B(23), 7C(14) or 7D(23) shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 5 years or both.
(3) In proceedings for an offence under subsection (1), it shall be a defence for a person against whom such proceedings are brought to prove that the person took all reasonable steps and exercised all due diligence to avoid the commission of the offence.
(4) Where an offence under this section is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
num: 9
paragraphs: The Principal Act is amended by the insertion of the following section after section 13:
“13A. Where, immediately before the date on which section 10 of the Communications (Retention of Data) (Amendment) Act 2022 comes into operation, data is retained by a service provider pursuant to the service provider’s obligation under section 3 (before its amendment by section 3 of the Communications (Retention of Data) (Amendment) Act 2022), the service provider shall, on and from that date, and for the purposes of compliance with disclosure requirements made pursuant to an authorisation under section 6A or 6B, continue to retain such data until the earlier of the following events:
(a) the expiry of a period of 6 months beginning on that date, or
(b) the making of the first order under section 3A.”.
num: 10
paragraphs: (1) Section 4(1) of the Principal Act is amended:
(a) by the substitution of “section 3(1), 3A(5), 3B(1), 7A(11) or 7B(10) ” for “section 3(1) ”, and
(b) by the substitution of the following paragraph for paragraph (d) :
“(d) the data, except those that have been accessed and preserved, shall be destroyed by the service provider in such manner, and within such period (which shall not exceed 2 years and one month) as may be prescribed.”.
(2) Section 5(b) of the Principal Act is amended by the substitution of “disclosure requirement” for “disclosure request”.
(3) The Principal Act is amended by the deletion of section 7.
(4) Section 9 of the Principal Act is amended—
(a) in subsection (1), by the substitution of “disclosure requirements made by a member of the Garda SÃ­ochÃ¡na under section 6(1), 6F(1), 7C(1) or 7D(1) ” for “disclosure requests made under section 6(1) ”,
(b) in subsection (2), by the substitution of “disclosure requirements made under section 6(2), 6F(1), 7C(2) or 7D(2) ” for “disclosure requests made under section 6(2)”,
(c) in subsection (3), by the substitution of “disclosure requirements made under section 6(3), 6F(1), 7C(6) or 7D(6) ” for “disclosure requests made under section 6(3)”,
(d) in subsection (3A), by the substitution of “disclosure requirements made under section 6(4), 6F(1), 7C(7) or 7D(7) ” for “disclosure requests made under section 6(3A)”, and
(e) in subsection (5) by the substitution of “disclosure requirement” for “disclosure request” in each place in which it occurs.
(5) Section 10 of the Principal Act is amended—
(a) by the substitution of “disclosure requirement” for “disclosure request” in each place in which it occurs,
(b) in subsection (1), by the substitution of “section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7C or 7D” for “section 6”,
(c) in subsection (3), by the substitution of “section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7C or 7D” for “section 6”, and
(d) in subsection (4), by the substitution of “section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7C or 7D” for “section 6”.
(6) Section 12 of the Principal Act is amended by the substitution of “disclosure requirement” for “disclosure request” in each place in which it occurs.
num: 11
paragraphs: (1) This Act may be cited as the Communications (Retention of Data) (Amendment) Act 2022.
(2) This Act shall come into operation on such day or days as the Minister for Justice may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.