Interception of Communications
Articles 17 to 22 of the 2000 Convention make provision for the interception of telecommunications.
The 2008 Act contains definitions of certain terms used in this Part. The following deals with interception of telecommunications where technical assistance is required from a member state.
Request to member state for interception
The 2008 Act sets out the circumstances in which a request may be made to another member state for the interception of telecommunications. An application may be made where the Minister has given an authorisation for an interception to be made under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993, where the person specified in the authorisation is present in this State or in a member state and where technical assistance is needed from a member state to perform the interception. the Minister may cause an application to be made to the relevant authority in a member state for the interception and immediate transmission to the Garda Siochana of telecommunications messages to or from the telecommunications address concerned or for the interception and recording of the messages and the transmission of the recording to the Garda Siochana.
The Act specifies the information to be provided when a request is made to a member state for interception. This provision gives effect to Articles 18.3 and 4 of the 2000 Convention. If the request relates to a person who is present in the territory of a third member state, that state must be notified of the authorisation of the interception.
Any information received is subject to the Official Secrets Act, 1963. The Act provides, for the purposes of clarification, that an authorisation under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 may be made where the person whose messages are to be intercepted is present in a member state.
Request to State for interception
The following deals with requests to Ireland from other member states.
In accordance with the 2008 Act a request may be made to the State for interception where a criminal investigation is underway in a member state; a lawful interception order or warrant has been issued in the member state; a request is made to the Minister for the interception and immediate transmission of telecommunications messages to or from the telecommunications address concerned or for the interception and recording of the messages and the transmission of the recording to the relevant authority; and where the specified person is present in any member state and the State’s assistance to intercept is required, or where s/he is present in the State and interception can take place within the State.
The Act set out information that must be included when a request is made to the State for an interception. The information is specified in Articles 18.3 and 4 of the 2000 Convention.
Action on request
Where the State receives a request for the interception and immediate transmission of specified telecommunications messages, the Minister may authorise the interception if the terms are complied with and are relevant to the application. the Minister may authorise interception, if the above is complied with and relevant to the application, where the request is for the interception and recording of specific telecommunications messages and immediate transmission of the interception is not possible.
In relation to cases falling above. where the person whose communications are to be intercepted is present in the State, the Minister may only authorise interception where the conduct under investigation would, if occurring in the State, constitute a serious offence and would justify the making of an interception authorisation.
The Act gives effect to Articles 18.6 and 7 of the 2000 Convention. The State may make a declaration under Article 18.7 of the 2000 Convention at the time of entry into force of the Convention to the effect that immediate transmission of interceptions is not possible. In those circumstances the State will comply with requests for the interception, recording and subsequent transmission of telecommunications on being provided with the information set out in Articles 18.3 and 18.4 of the 2000 Convention, if such requests would be granted under of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993.
The Minister may make authorisation of the interception if the person is present in the State subject to conditions that would be applied under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993. The Act provides for the Commissioner of the Garda Siochana to transmit the telecommunications messages or to arrange for the recording and subsequent transmission of the messages following the granting of an interception request.
Under the Act a request for a transcript of a recording may be made. The granting of any such request may be subject to any of the conditions which would apply to the authorisation of an interception. any authorisation made under these provisions has effect as if it were an authorisation under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 and the Postal and Telecommunications Services Act, 1983.
The following deal with interceptions where technical assistance from a member state is not required
Notification to member state of interception
Where the Minister has authorised an interception and the telecommunications address of the person concerned is being used in a member state and technical assistance of that state is not required to intercept, the member state will be notified by the Minister, as soon as the State becomes aware of the fact, that the person concerned is in that territory. The Act sets out the information to be provided when a notification is being made.
The Minister will comply with any condition, requirement or request in relation to a request made under Article 20.4 of the 2000 Convention. while the authority of the member state is considering whether to consent to the interception, any interception already made may be continued. However, any material already intercepted may not be used unless agreed with the other member state or for the purpose of taking urgent measures to prevent an immediate and serious threat to public security.
The Act defines ‘‘serious offence’. A summary of the case and any further relevant information must be provided to the member state by the Minister, if requested, to enable a decision to be made concerning interception. In accordance with the Act the information provided under the Act is without prejudice to a member state’s decision in relation to consent to interception.
The Act provides for information in relation to interception of a particularly sensitive nature, to be transmitted through a specific person or body. The 2008 Act does not apply where a member state has declared that it does not require the information, in line with the provisions in Article 20 of the 2000 Convention.
Notification by member state of interception
The 2008 Act applies when interception has been authorised in a member state, the telecommunications address of the person concerned is being used in this State, technical assistance from the State is not required in order to intercept and the competent authority of the member state notifies the Minister to this effect in accordance with Article 20 of the 2000 Convention.
The Minister shall make a decision on the grant or disallowance, continuation or termination of interception within the time frames specified. A decision will also be necessary in relation to the use of information already intercepted. The request for an authorisation shall be granted or the authorisation shall be continued if it would be given domestically under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993.
The Minister will require that an interception will not be carried out or that it is terminated if such a request would not be granted in a domestic context. The reasons for such a request will be provided in writing. Where a request is refused or terminated, any material already intercepted may not be used, or if it is to be used this may only be done in specified conditions. The justification for any such condition will be communicated by the Minister in writing.
The Minister may ask the requesting state to provide a summary of the facts of the case and any further information s/he considers necessary to decide whether an interception would be granted in a similar domestic context. The Act sets out the time limits to apply to requests which fall within the terms of the Act. The Minister must notify the relevant member state of the reasons why an extension of the periods specified in the Act is required. The Official Secrets Act, 1963 applies to any information provided.
Indirect interception of telecommunications messages
The 2008 Act defines ‘authorised undertaking’. where a person is present in the State, authorisation for interception has been given but the messages cannot be directly intercepted in the State and the authorised undertaking is obliged to facilitate interception and can in this instance facilitate interception by accessing equipment in a member state, the authorised undertaking shall facilitate the interception.
Where the person concerned is present in a member state, a lawful warrant or order for interception has been made for the purposes of a criminal investigation but the messages cannot be directly intercepted in the member state and an authorised undertaking in this State is obliged to facilitate interception and can in this instance directly intercept and has equipment that can enable a telecommunications provider in the member state to intercept, then the authorised undertaking shall facilitate the interception of the messages.
The 2008 Act amends the Postal and Telecommunications Services Act, 1983 by the insertion of a provision for fines for noncompliance. Authorised undertakings who are obliged to comply with requests to facilitate interception and who do not do so, without reasonable excuse, will be subject to a fine of €5,000 on summary conviction and an unlimited fine on indictment.