‘Allow lawful access to encrypted messages’ – examiner
The first annual report from the Independent Examiner of Security Legislation has made several recommendations aimed at giving national-security agencies more powers.
These include the development of legislation to allow for interception and access to digital communications and measures to allow lawful access to encrypted communications.
The office was set up under the Policing, Security and Community Safety Act 2024 to strengthen oversight of national security.
The first report from independent examiner George Birmingham, a former president of the Court of Appeal, includes a review of the operation and effectiveness of three pieces of security legislation:
- Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993,
- Criminal Justice (Surveillance) Act 2009, and
- Communications (Retention of Data) Act 2011.
“Multi-pronged’ threats
The examiner said this report included recommendations not only for extending the powers available to agencies, but also for procedural changes designed to strengthen and extend safeguards for the protection of human rights.
His report described the security threats facing the State as “multi-pronged”, with dissident republicans remaining “ a real concern”.
“Islamist terrorism is a significant cause of concern, either because of the possibility of attacks within this jurisdiction … and also the possibility of an attack on a neighbouring jurisdiction being planned or launched from this State.
“There is also the question of extreme right-wing terrorism as well as single-issue terrorism and extreme left-wing terrorism.”
‘Modest’ level of interceptions
On the 1993 act, which sets out how communications including post and telecommunications may be lawfully intercepted in the State, the examiner describes the current level of activity under the legislation as “modest”.
“The overall level does not offer any support whatsoever for any suggestion that the bodies vested with powers in this area have exercised them in a cavalier fashion,” Mr Justice Birmingham states.
He calls for legislation to address gaps in the 1993 act, many of which arise because its pre-dates modern digital communications.
These include the lack of a provision to intercept messages on services such as WhatsApp, Telegram, and Snapchat, and the absence of a legislative basis to access the content of data-based material, such as webpages or internet browsing history.
'Clear and robust safeguards'
The examiner recommends a legislative basis for lawful access to encrypted communications, but warns that achieving this while protecting the privacy rights of everybody else “will not be easy”, adding that “clear and robust safeguards” will be required.
Mr Justice Birmingham says that he would favour giving the judiciary a role in authorising such interceptions, adding that he is “not fully convinced” of the need for the Minister for Justice to have such a role.
Minister Jim O'Callaghan said in January that he had secured approval for the drafting of a bill to replace the 1993 act.
Surveillance
The 2009 act facilitates the use in evidence gained by secret surveillance – including audio-visual devices and tracking devices.
The report shows that An Garda Síochána made nine applications to the District Court in the period under review (2 April 2025 to 31 December 2025), with none refused, while tracking devices were deployed on 47 occasions.
The Defence Forces were given six authorisations under the act, while Revenue made three applications.
The examiner’s report makes recommendations on the 2009 that include:
- Providing for authorisation of tracking devices by superior officers on a short-term basis, with a requirement to seek judicial affirmation,
- Introducing a legislative requirement for senior officers authorising urgent applications for surveillance or applications for tracking devices to be independent of the investigation or operation, and
- Addressing the issue of the deployment of tracking devices after a period of four months’ monitoring.
Data retention
The examiner also reviewed the Communications (Retention of Data) (Amendment) Act 2022, which amended the Communications (Retention of Data) Act 2011 after a ruling by the EU’s Court of Justice, which found that EU law precluded the general and indiscriminate retention of electronic traffic and location data for the purposes of combating serious crime.
His report calls for a change to the current system, under which superior officers with a prior involvement in an investigation are excluded from decisions on urgent applications for access to cell-site location data.
“I believe that the exclusion of superior officers with prior involvement achieves little but adds an unnecessary complication,” the examiner states, adding that exceptions should be provided to this requirement.
Mr Justice Bermingham also describes the absence of any express reference to the Police Ombudsman or Fiosrú in the act as “hard to understand” and calls for the early enactment of legislation to “expressly and directly” provide for powers for the ombudsman under the act.