The Gazette 1993

GAZETTE

SEPTEMBER 1993

L A W B R I E F

Many aspects of privacy came up for consideration in the context of the Interception of Postal Packets and Telecommunications Messages Regulation Act, 1993 (the Interception Act, 1993 ) which came into force on June 6, 1993. The purpose of the Act was to place on a statutory basis the conditions under which the existing power of the Minister for Justice to issue warrants authorising the interception of postal packets (primarily letters) and telecommunications messages (primarily telephone calls) is to be exercised and to regulate the procedure for the issue of authorisations. The Act provided that the only purposes for which interceptions may be authorised may be those of criminal investigation or the security of the State. The Act sets out in detail the procedure for applications for, and the issue of, warrants authorising interceptions. The procedure is similar to that followed at present. The Act introduced two new provisions for controlling the exercise of the powers of the Minister for Justice in respect of interceptions. The first was for a designated judge of the High | Court to keep the operation of the Act Í under review, to ascertain whether its provisions are being complied with and to report to the Taoiseach. The other new provision is that a person who believes that his communications have been improperly intercepted will be able to have his/her complaint investi- gated by a "Complaints Referee" who will be a serving judge of the Circuit Court or District Court, or a barrister or : solicitor of ten years standing appointed for the purpose and who will have power in an appropriate case, if he/she upholds the complaint, to quash the authorisation and make a binding recommendation for the payment of j compensation to the complainant.

subsection (2A) in section 98 of the Postal and Telecommunications Services Act, 1983 (the 1983 Act). This new subsection relates to a process whereby Telecom Eireann in the normal course of its business keeps records of the date, time and duration of telephone calls. The new section 98 (2A) makes it an offence for a person employed by Telecom Eireann to disclose to any person the use made of telecommunications services provided for any other person unless the disclosure is made in the circumstances specified in the subsection: at the request or with the consent of the subscriber; for the prevention, detection of crime or for the purpose of criminal proceedings; in the interests of the security of the State; in pursuance of an order of a court; for the purpose of civil proceedings in any court; or in the course of the employee's duty as such employee. The maximum penalties for the offence are, under section 4(2) of the 1983 Act, the same as those for other offences under section 98 in relation to intercepting telephone calls by persons other than the State, i.e. a fine of £800 or twelve months' imprisonment or both, on summary conviction, and a fine of £50,000 or five years' imprisonment, or both, on conviction on indictment. j A new section (2B) in section 98 of the 1983 Act provides that a request by members of the Garda Síochána to a person employed in Telecom Eireann to make a disclosure of the date, time and duration of a telephone call in relation to the prevention or detection of crime or for the purpose of criminal proceedings, must be in writing and signed by a member of the Garda Síochána not below the rank of | Chief Superintendent. There is also j provision that a request by an officer of the Defence Forces to a person employed in Telecom Eireann to make a similar disclosure, for example, in the interests of the security of the j j \ j |

Telephone Privacy

Privacy is a matter for concern for all of us. We may ask "what is privacy"? j The most useful dictionary definition | is that given by the current edition of the Concise Oxford Dictionary which defines privacy as "the state of being private and undisturbed, a person's right to this freedom from intrusion or public attention . . . avoidance of publicity." Another description that many lawyers are familiar with was that S used by Thomas Cooley, in Torts, I (second edition, 1888) and described as "the right to be left alone". These definitions are probably inadequate for legal or statutory purposes, but they express sentiments that most people would regard as a basic human need and right. Edward J. Bloustein, in "Privacy as an j Aspect of Human Dignity", (1964) 39 New York ULR. 962 at 971, noted that privacy is an interest of the human personality. It protects the inviolate personality, the individual's independence, dignity and integrity. Ruth Gavison in "Privacy and the Limits of Law", (1980) 89 Yale U 421, at 428 has noted that privacy "is a limitation of others' access to an individual . . . in perfect privacy, no one has any information about X, no one pays any attention to X and no one has physical access to X." In this conceptual framework, there are three elements of privacy: secrecy, anonymity and solitude. We all agree ! that privacy is important. One aspect of privacy is freedom from ; unwarranted interference by the State. We all know that privacy is one of the first victims of a totalitarian state.

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; The opportunity was also taken in the Interception Act, 1993 to insert a new

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