There has been criticism of the powers given to Gardai by the recently proposed Garda Síochána (Powers) Bill 2021, with particular concern over the impact the measures may have on journalists and the concept of “journalist privilege”.
The proposal would allow a warrant to be obtained even “where no offence is suspected”, and under which Gardai could demand access to one’s phone, tablet or computer and for the passport / PIN to such devices to be provided. Failure to comply could result in imprisonment for up to five years and a fine of up to €30,000. Such a search could also be carried out on the device(s) of “any person present at the place where the search is carried out”.
Writing on TheJournal.ie / irishlegal.com, Dr. Cian Ó Concubhair of NUI Maynooth stated that whilst “the proposed law brings some welcome rationalisation and clarification of Garda powers of search, arrest, and detention, along with an important statutory right to have a solicitor present during Garda questioning”, it may also exacerbate “existing problems” with how so-called “journalist privilege” is dealt with in Irish courts. With reference to the lawsuit taken by journalist Emmet Corcoran against An Garda Síochána following Gardai’s seizure of his phone, Dr. Ó Concubhair wrote:
“A journalist’s entitlement to refuse to provide (electronic device) passwords (is) the only way they might have their constitutional rights vindicated...if Gardaí were able to compel immediate access to confidential source information on a digital device, a journalist would have no time to seek High Court protection against an unconstitutional Garda search.”
UCD Sutherland School of Law associate professor Dr. TJ McIntyre echoed these concerns in the Irish Times, expressing concern at the lack of safeguards apparent in the proposals with regards to the scope of searches of devices:
“...if something “may contain” information within the scope of the warrant and “it is not reasonably practicable” to separate out that information then all the material – such as the entire contents of a device or the whole of an email account – may be seized and searched. In practice, this means that in most cases the entire contents of a phone, an email account, and so on will be copied.”
Dr. McIntyre drew attention to the process in the UK, whereby a judge must approve such disclosure of a password, and only where such a move is proportionate in the circumstances or there is no alternative.
DCU’s Dr. Vicky Conway concurred that the bill was “exceptionally weak on safeguards”, terming it “a bit of a land grab by the Department of Justice.”