Legalize / Ireland / Act

Communications (Retention of Data) Act 2011

Type Act

Publication 2011-01-26

Last updated 2025-04-02

State In force

Source Irish Statute Book

articles 36

Reform history JSON API

1. Interpretation.

1.— (1) In this Act—

“Act of 1993” means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;

F1["authorising judge" means a judge of the District Court designated undersection 12J(1);]

“cell ID” means the identity of the cell from which a mobile telephony call originated or in which it terminated;

F2["competition offence" means an offence under section 6 of theCompetition Act 2002, that is an offence involving an agreement, decision or concerted practice to which subsection (2) of that section applies;]

“data” means traffic data or location data and the related data necessary to identify the subscriber or user;

F3[…]

F1["disclosure requirement" means a requirement made of a service provider undersection 6, 6F, 7Cor7D;

"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 1998^1) of Directive 98/34/EC of 22 June 1998^2which do not consist wholly or mainly in the conveyance of signals on electronic communications networks;]

F4[…]

“Garda Commissioner” means the Commissioner of the Garda Síochána;

F1["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;]

“Minister” means the Minister for Justice, Equality and Law Reform;

“processing” has the same meaning as in the Data Protection Act 1988;

“Referee” means the holder of the office of Complaints Referee under the Act of 1993;

“revenue offence” means an offence under any of the following provisions that is a serious offence:

(a) section 186 of the Customs Consolidation Act 1876;

(b) section 1078 of the Taxes Consolidation Act 1997;

(d) section 119 of the Finance Act 2001;

(e) section 79 (inserted by section 62 of the Finance Act 2005) of the Finance Act 2003;

(f) section 78 of the Finance Act 2005;

F1["Schedule 2 data" means the categories of data specified inParts 1and2ofSchedule 2;]

“serious offence” means an offence punishable by imprisonment for a term of 5 years or more, and an offence listed in Schedule 1 is deemed to be a serious offence;

“service provider” means a person who is engaged in the provision of a publicly available electronic communications service or a public communications network by means of fixed line or mobile telephones or the Internet;

F1["superior officer" means—

(a) in relation to a member of the Garda Síochána, a member of the Garda Síochána not below the rank of superintendent;

(b) in relation to a member of the Permanent Defence Force, a member of the Permanent Defence Force not below the rank of lieutenant colonel;

(c) in relation to an officer of the Revenue Commissioners, an officer of the Revenue Commissioners not below the rank of principal officer;]

F5[(d) in relation to an officer of the Competition and Consumer ProtectionF6[Commission], an officer of the Competition and Consumer ProtectionF6[Commission]not below the rank of principal officer;]

“telephone service” means calls (including voice, voicemail, conference and data calls), supplementary services (including call forwarding and call transfer) and messaging and multimedia services (including short message services, enhanced media services and multi-media services);

“unsuccessful call attempt” means a communication where a telephone call or an Internet telephony call has been successfully connected but not answered or there has been a network management intervention;

F7["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;]

F1["user data" means the following types of data and any other types of data set out in technical specification ETSI TS 103 280 "Lawful Interception (LI): dictionary for common parameters" issued by the European Telecommunications Standards Institute that are relevant to these data:

(a) the name of the user;

(b) the address of the user;

(i) the mobile telephony number;

(ii) the fixed network telephony number;

(iii) the International Mobile Subscriber Identifier (IMSI);

(iv) the International Mobile Equipment Identity (IMEI);

(v) the Internet Protocol (IP) address, whether dynamic or static, allocated by the internet access service to the communication;

(vi) the user ID;

(vii) the date and time of initial activation of an electronic communications service or other means of communication;

(viii) the date and time of the last outgoing mobile telephony or fixed network telephony communication;]

“user ID” means a unique identifier allocated to a person when they subscribe to or register with an Internet access service or Internet communications service.

(2) A word or expression used in this Act and also in Directive 2002/58/EC has the same meaning in this Act as in that Directive.

2. Non-application of Act.

2.— This Act does not apply to the content of communications transmitted by means of fixed network telephony, mobile telephony, Internet access, Internet e-mail or Internet telephony.

3. F8[Obligation to retain data

3.—(1) A service provider shall retain, in accordance withsection 12D, user data for a period of one year, or such period as may be prescribed in accordance withsubsection (2), from the date on which the data were first processed by the service provider concerned.

(2) The Minister may, for the purposes ofsubsection (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 insection 6(1)(b).

(3) The Minister may, in prescribing a period undersubsection (2), prescribe different periods for different types of data specified in the definition of "user data" in this Act.]

3A. F9[Obligation to retain Schedule 2 data

3A.—(1) The Minister may, where he or she is satisfied that there exists a serious and genuine, present or foreseeable threat to the security of the State, make, in accordance with this section, an application to a relevant judge for an order under this section.

(2) Before making an application undersubsection (1), the Minister shall assess the threat to the security of the State and, in doing so shall have regard to the necessity and proportionality of the retention ofSchedule 2data pursuant to an order under this section, taking into account the impact of such retention on the fundamental rights of individuals.

(3) An application undersubsection (1)shall—

(a) be madeex parte,

(b) be upon information on oath specifying the grounds on which the order is sought, which information shall include the assessment undersubsection (2)concerned,

(c) specify the period of time for which retention of Schedule 2 data by service providers is, in the view of the Minister, having regard to his or her assessment undersubsection (2), required for the purposes of safeguarding the security of the State, and

(d) be heard otherwise than in public.

(4) A relevant judge, as respects an application undersubsection (1), may make an order undersubsection (5)only if satisfied that the making of such an order is necessary for, and proportionate to, the purposes for which the application was made.

(5) An order under this subsection shall require all service providers to retainSchedule 2data, or suchSchedule 2data as are specified in the order—

(a) for a period of 12 months from the date on which the data were first processed by the service provider concerned,

(b) in accordance withsection 12D, and

(6) Where a relevant judge makes an order undersubsection (5), the Minister shall, without delay arrange for—

(a) the order to be publicised in the national media,

(b) the order to be notified, in so far as practicable, to service providers, and

(7) A service provider shall comply with an order undersubsection (5).

(8) The data to which this section applies include data relating to unsuccessful call attempts that, in the case of data specified inPart 1ofF10[Schedule 2], are stored in the State, or in the case of data specified inPart 2ofF10[Schedule 2], are logged in the State.

(9) An order under this section shall not require a service provider to retain aggregated data, data that have been made anonymous or data relating to unconnected calls.

(10) The President of the High Court shall at the request of the Minister, designate a judge or judges of the High Court to perform the functions of a relevant judge under this section, and a reference in this section to a "relevant judge" shall be construed as a reference to a judge so designated.

(11) In this section, "aggregated data" means data that cannot be related to individual users.]

3B. F11[Obligation to retain internet source data.

3B.—(1) A service provider shall retain, in accordance withsection 12D, internet source data for a period of one year, or such period as may be prescribed in accordance withsubsection (2), from the date on which the data were first processed by the service provider concerned.

4. Data security.

4.— (1) A service provider who F12[retains or preserves] data under F13[section 3(1),3A(5),3B(1),7A(11)or7B(10)] shall take the following security measures in relation to the retained data:

(a) the data shall be of the same quality and subject to the same security and protection as those data relating to the publicly available electronic communications service or to the public communications network, as the case may be;

(b) the data shall be subject to appropriate technical and organisational measures to protect the data against accidental or unlawful destruction, accidental loss or alteration, or unauthorised or unlawful storage, processing, access or disclosure;

(c) the data shall be subject to appropriate technical and organisational measures to ensure that they can be accessed by authorised personnel only;

F13[(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) The Data Protection Commissioner is hereby designated as the national supervisory authority for the purposes of this Act and Directive No. 2006/24/EC of the European Parliament and of the Council.

5. Access to data.

5.— A service provider shall not access data retained in accordance with section 3 except—

(a) at the request and with the consent of a person to whom the data relate,

(b) for the purpose of complying with a F14[disclosure requirement],

(d) as may be authorised by the Data Protection Commissioner.

6. F15[Requirement to disclose user data

6.—(1) A member of the Garda Síochána 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,

(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.

F16[(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 theF17[officer]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 theF17[officer]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 tosubsection (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 withsubsection (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 undersubsection (5)is given to him or her or, where applicable, a requirement is made of him or her undersubsection (6), comply with the requirement concerned.]

6A. F18[Authorisation to require disclosure of Schedule 2 data

6A.—(1) A member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for an authorisation under this section where the member is of the belief that theSchedule 2data in respect of which the application is made—

(a) relate to a person whom the member suspects, upon reasonable grounds, of presenting an actual or potential threat to the security of the State, or

(b) are otherwise required for the purpose of safeguarding the security of the State.

(2) A member of the Permanent Defence Force not below the rank of commandant may apply to an authorising judge for an authorisation under this section where the member is of the belief that theSchedule 2data in respect of which the application is made—

(a) relate to a person whom the member suspects, upon reasonable grounds, of presenting an actual or potential threat to the security of the State, or

(b) are otherwise required for the purpose of safeguarding the security of the State.

(3) An application for an authorisation under this section shall—

(a) be madeex parte,

(b) be upon information on oath, specifying the grounds on which the order is sought,

(d) be heard otherwise than in public.

(4) An authorising judge, as respects an application for an authorisation under this section, may issue an authorisation only if satisfied that—

(a)paragraph (a)or(b)ofsubsection (1)or, as the case may be,subsection (2), applies in respect of the application, and

(b) the issuing of the authorisation is necessary for, and proportionate to, the purposes for which the application is made.

(5) An authorisation under this section shall authorise the applicant concerned, at any time in the period during which the authorisation has effect, to require the service provider specified in the authorisation to disclose to that applicantSchedule 2data in the service provider’s possession or control—

(a) of such class or classes as are specified in the authorisation, and

(b) subject to such conditions and directions as may be specified in the authorisation.

(6) For the purposes ofsubsection (5)(a), an authorising judge may specify a class or classes ofSchedule 2data by reference to one or more of the following:

(a) a particular location or locations;

(b) a particular geographical area or areas;

(d) a particular means of communication;

(e) a particular person or particular persons;

(f) such other matter or feature as the authorising judge considers appropriate.

(7) This section shall apply toSchedule 2data irrespective of whether an order undersection 3Ais in effect in relation to such data.]

6B. F19[Authorisation to require disclosure of Schedule 2 data in case of urgency

6B.—(1) Subject tosubsection (13), a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for an authorisation under this section where the member believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 6A(1)applies to theSchedule 2data in respect of which the application is made, and

(b) it is likely that, before theSchedule 2data could be obtained pursuant to an authorisation undersection 6A—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the security of the State would be compromised.

(2) Subject tosubsection (13), a member of the Permanent Defence Force not below the rank of commandant may apply to a superior officer for an authorisation under this section where the member believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 6A(2)applies to theSchedule 2data in respect of which the application is made, and (b) it is likely that, before the Schedule 2 data could be obtained pursuant to an authorisation undersection 6A—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the security of the State would be likely to be compromised.

(b) it is likely that, before the Schedule 2 data could be obtained pursuant to an authorisation undersection 6A—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the security of the State would be likely to be compromised.

(3) A superior officer to whom an application undersubsection (1)or(2)is made shall issue an authorisation under this section only if satisfied that—

(a)paragraphs (a)and(b)of the subsection concerned apply in respect of theSchedule 2data concerned, and

(b) the issuing of the authorisation is necessary for, and proportionate to, the purposes for which the application is made.

(4) An authorisation under this section shall authorise the applicant concerned, at any time in the period during which the authorisation has effect, to require the service provider specified in the authorisation to disclose to the applicantSchedule 2data—

(a) of such class or classes as are specified in the authorisation and in the service provider’s possession or control, and

(b) subject to such conditions and directions as may be specified in the authorisation.

(5) For the purposes ofsubsection (4)(a), a superior officer may specify a class or classes ofSchedule 2data by reference to one or more of the following:

(a) a particular location or locations;

(b) a particular geographical area or areas;

(d) a particular means of communication;

(e) a particular person or particular persons;

(f) such other matter or feature as the superior officer considers appropriate.

(6) A superior officer shall, not later than 8 hours after he or she issues an authorisation under this section, prepare a record in writing, in such form as may be prescribed, of the authorisation.

(7) (a) A superior officer shall, not later than 7 days after he or she issues an authorisation under this section, prepare a report in relation to the issuing of the authorisation.

(b) The record prepared in accordance withsubsection (6)in relation to an authorisation shall be included in the report prepared under this section in relation to that authorisation.

(8) A report prepared undersubsection (7)shall:

(a) in relation to an authorisation issued pursuant to an application undersubsection (1), be submitted by the superior officer concerned to a member of the Garda Síochána not below the rank of chief superintendent;

(b) in relation to an authorisation issued pursuant to an application undersubsection (2), be submitted by the superior officer concerned to a member of the Permanent Defence Force not below the rank of colonel.

(9)F20[Subject tosubsection (15), a superior officer]shall, as soon as possible and, in any event, not later than 72 hours after he or she issues an authorisation under this section, apply to an authorising judge for affirmation of the authorisation.

(10) An application undersubsection (9)for affirmation of an authorisation shall—

(a) be madeF20[ex parte,]

(b) be upon information on oath, specifying the grounds on which the authorisation wasF20[issued, and]

F21[(c) be heard otherwise than in public.]

(11) An authorising judge, on hearing an application undersubsection (9), shall consider whether the authorisation was necessary for, and proportionate to, the purposes for which it was issued and may—

(a) affirm,

(b) vary, or

the authorisation.

(12) An authorising judge who revokes, undersubsection (11)(c), an authorisation, may, where he or she considers it reasonable to do so, apply to the referee referred to insection 10to conduct an investigation under that section in relation to the matter.

(13) An application for an authorisation under this section shall not be made to a superior officer who has had any involvement in the investigation, detection or prevention of a threat or apprehended threat to the security of the State that occasioned the making of the application and, accordingly, such a superior officer shall not consider such an application or issue an authorisation upon such an application.

(14) Subject tosubsection (15), an authorisation under this section shall cease to have effect upon the expiration of 72 hours from the issue of the authorisation, or such shorter period as the superior officer may specify in the authorisation.

(15) Where, due to exceptional circumstances that are beyond his or her control, a superior officer is unable to make an application undersubsection (9)within the period specified in that subsection, he or she—

(a) may extend the period during which the authorisation concerned shall have effect by such further period as he or she considers necessary for, and proportionate to, the purposes for which the authorisation was issued, provided that the total period during which an authorisation to which this subsection applies shall have effect shall not exceed 96 hours from the issue of the authorisation, and

(b) where he or she extends underparagraph (a)the period during which the authorisation shall have effect, shall make an application underF20[subsection (9)]before the authorisation ceases to have effect.

(16) This section shall apply toSchedule 2data irrespective of whether an order undersection 3Ais in effect in relation to such data.]

6C. F22[Authorisation to require disclosure of internet source data

6C.—(1) A member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for an authorisation under this section where the member is of the belief that the internet source data in respect of which the application is made—

(a) relate to a person whom the member suspects, on reasonable grounds of—

(i) having committed a serious offence, or

(ii) presenting an actual or potential threat to the security of the State,

(b) are otherwise required to be preserved for the purpose of—

(i) preventing, detecting, investigating or prosecuting a serious offence,

(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 commandant may apply to an authorising judge for an authorisation under this section where the member is of the belief that the internet source data in respect of which the application is made—

(a) relate to a person whom the member suspects, upon reasonable grounds, of presenting an actual or potential threat to the security of the State, or

(b) 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 assistant principal officer may apply to an authorising judge for an authorisation under this section where the officer is of the belief that the internet source data in respect of which the application is made—

(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a revenue offence, or

(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a revenue offence.

F23[(4) An officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to an authorising judge for an authorisation under this section where the officer is of the belief that the internet source data in respect of which the application is made—

(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a competition offence, or

(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a competition offence.]

(5) An application for an authorisation under this section shall—

(a) be madeex parte,

(b) be upon information on oath, specifying the grounds on which the authorisation is sought,

(d) be heard otherwise than in public.

(6) An authorising judge, as respects an application for an authorisation under this section, may issue an authorisation only if satisfied that—

(a)paragraph (a)or(b)ofsubsections (1), (2), (3)or(4), as the case may be, applies in respect of the application, and

(b) the issuing of the authorisation is necessary for, and proportionate to, the purposes for which the application was made.

(7) An authorisation under this section shall authorise the applicant concerned, at any time in the period during which the authorisation has effect, to require the service provider specified in the authorisation to disclose to that applicant internet source data in the service provider’s possession or control—

(a) of such class or classes as are specified in the authorisation, and

(b) subject to such conditions and directions as may be specified in the authorisation.

(8) For the purposes ofsubsection (7)(a), an authorising judge may specify a class of internet source data by reference to any one or more of the following:

(a) a particular location or locations;

(b) a particular geographical area or areas;

(d) a particular means of communication;

(e) a particular person or particular persons;

(f) such other matter as the authorising judge considers appropriate.]

6D. F24[Authorisation to require disclosure of internet source data in case of urgency

6D.—(1) Subject tosubsection (15), a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for an authorisation under this section where the member believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 6C(1)apply to the internet source data in respect of which the application is made, and

(b) it is likely that, before the internet source data could be obtained pursuant to an authorisation undersection 6C—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable,

(ii) the achievement of an objective specified insection 6C(1)(b)would be impeded, or

(iii) the security of the State would be compromised.

(2) Subject tosubsection (15), a member of the Permanent Defence Force not below the rank of commandant may apply to a superior officer for an authorisation under this section where the member believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 6C(2)apply to the internet source data in respect of which the application is made, and

(b) it is likely that, before the internet source data could be obtained pursuant to an authorisation undersection 6C—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the security of the State would be compromised.

(3) Subject tosubsection (15), an officer of the Revenue Commissioners not below the rank of assistant principal officer may apply to a superior officer for an authorisation under this section where the officer believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 6C(3)applies to the internet source data in respect of which the application is made, and

(b) it is likely that, before the internet source data could be obtained pursuant to an authorisation undersection 6C—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the prevention, detection, investigation or prosecution of a revenue offence would be impeded.

F25[(4) Subject tosubsection (15), an officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to a superior officer for an authorisation under this section where the officer believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 6C(4)apply to the internet source data in respect of which the application is made, and

(b) it is likely that, before the internet source data could be obtained pursuant to an authorisation undersection 6C—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the prevention, detection, investigation or prosecution of a competition offence would be impeded.]

(5) A superior officer to whom an application undersubsection (1),(2),(3)or(4)is made shall issue an authorisation under this section only if satisfied that—

(a)paragraphs (a)and(b)of the subsection concerned apply in respect of the internet source data concerned, and

(b) the issuing of the authorisation is necessary for, and proportionate to, the purposes for which the application is made.

(6) An authorisation under this section shall authorise the applicant concerned, at any time in the period during which the authorisation has effect, to require the service provider specified in the authorisation to disclose to the applicant internet source data—

(a) of such class or classes as are specified in the authorisation and in the service provider’s possession or control, and

(b) subject to such conditions and directions as may be specified in the authorisation.

(7) For the purposes ofsubsection (6)(a), a superior officer may specify a class or classes of internet source data by reference to one or more of the following:

(a) a particular location or locations;

(b) a particular geographical area or areas;

(d) a particular means of communication;

(e) a particular person or particular persons;

(f) such other matter or feature as the superior officer considers appropriate.

(8) A superior officer shall, not later than 8 hours after he or she issues an authorisation under this section, prepare a record in writing, in such form as may be prescribed, of the authorisation.

(9) (a) A superior officer shall, not later than 7 days after he or she issues an authorisation under this section, prepare a report in relation to the issuing of the authorisation.

(b) The record prepared in accordance withsubsection (8)in relation to an authorisation shall be included in the report prepared under this section in relation to that authorisation.

(10) A report prepared undersubsection (9)shall:

(c) in relation to an authorisation issued pursuant to an application undersubsection (3), be submitted by the superior officer concerned to an officer of the Revenue Commissioners not below the rank of assistant secretary general;

F25[(d) in relation to an authorisation issued pursuant to an application undersubsection (4), be submitted by the superior officer concerned to an officer of the Competition and Consumer Protection Commission not below the rank of member of the Commission.]

(11)F26[Subject tosubsection (17), a superior officer]shall, as soon as possible and, in any event, not later than 72 hours after he or she issues an authorisation under this section, apply to an authorising judge for affirmation of the authorisation.

(12) An application undersubsection (11)for affirmation of an authorisation shall—

(a) be madeF26[ex parte,]

(b) be upon information on oath, specifying the grounds on which the authorisation wasF26[issued, and]

F27[(c) be heard otherwise than in public.]

(13) An authorising judge, on hearing an application undersubsection (11), shall consider whether the authorisation was necessary for, and proportionate to, the purposes for which it was issued and may—

(a) affirm,

(b) vary, or

the authorisation.

(14) An authorising judge who revokes, undersubsection (13)(c), an authorisation, may, where he or she considers it reasonable to do so, apply to the referee referred to insection 10to conduct an investigation under that section in relation to the matter.

(15) An application for an authorisation under this section shall not be made to a superior officer who has had any involvement in the investigation, detection or prevention of a—

(a) threat or apprehended threat to the security of the State, or

(b) serious offence, revenue offence or competition offence,

that occasioned the making of the application and, accordingly, such a superior officer shall not consider such an application or issue an authorisation upon such an application.

(16) Subject tosubsection (17), an authorisation under this section shall cease to have effect upon the expiration of 72 hours from the issue of the authorisation, or such shorter period as the superior officer may specify in the authorisation.

(17) Where, due to exceptional circumstances that are beyond his or her control, a superior officer is unable to make an application undersubsection (11)within the period specified in that subsection, he or she—

(b) where he or she extends underparagraph (a)the period during which the authorisation shall have effect, shall make an application undersubsection (11)before the authorisation ceases to have effect.]

6E. F28[Requirement to disclose cell site location data in case of urgency

6E.—(1) A member of the Garda Síochána not below the rank of inspector may apply to a superior officer for an authorisation under this section where the member believes on reasonable grounds that the cell site location data in respect of which the application was made are required for the purpose of—

(a) 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

(b) determining the whereabouts of a missing person.

F29[(2) A superior officer to whom an application undersubsection (1)is made shall issue an authorisation under this section only if satisfied that—

(a)paragraph (a)or(b) of the subsection applies in respect of the cell site location data concerned,

(b) the issuing of the authorisation is necessary for, and proportionate to, the purposes for which the application is made, taking into account the impact of the disclosure of the cell site location data concerned pursuant to the authorisation on the fundamental rights of individuals, and

(c) the circumstances of urgency giving rise to the application would render it impracticable to seek to achieve the objective specified inparagraph (a)or(b)ofsubsection (1), as the case may be, under any other provision of this Act.]

(3)Subsections (6)to(12)andsubsections (14)to(16)ofsection 6Bshall apply in respect of an authorisation under this section as they apply in respect of an authorisation underF29[that section, subject to the modification that a reference in those subsections to a superior officer shall be construed as a reference to a superior officer within the meaning of this section.]

F30[(3A) An application for an authorisation under this section shall not be made to a superior officer who has had any involvement in an action taken by the Garda Síochána in response to the circumstances that occasioned the making of the application and, accordingly, such a superior officer shall not consider such an application or issue an authorisation upon such an application.]

(a) specified in the authorisation, and

(b) subject to such conditions and directions as may be specified in the authorisation.

(5) In thisF31[section andsection 6F,]"cell site location data" mean data processed by means of an electronic communications network that identifies the most recent geographic location of the device or equipment used by a user when availing of a publicly available electronic communications service.]

F30[(6) In this section, notwithstanding the definition of "superior officer" insection 1(1), "superior officer" means a member of the Garda Síochána not below the rank of inspector.]

6F. F32[Requirement to disclose Schedule 2 data, internet source data or cell site location data

6F.—(1) A member of the Garda Síochána, member of the Permanent Defence Force, officer of the Revenue Commissioners or officer of the Competition and Consumer ProtectionF33[Commission], as the case may be, to whom an authorisation has been issued undersection 6A, 6B, 6C, 6Dor6Emay at any time in the period during which the authorisation has effect, by notice in writing require the service provider specified in the authorisation toF33[disclose to the member or officer concernedSchedule 2data, internet source data or cell site location data, as the case may be]—

(a) of such class or classes as are specified in the authorisation and in the service provider’s possession or control, and

(b) subject to such conditions and directions as may be specified in the authorisation.

(2) A service provider to whom a notice is given undersubsection (1)shall comply with the requirement concerned—

(a) where the disclosure requirement is made pursuant to an authorisation undersection 6B, 6Dor6E, without delay, and

(b) in any other case, as soon as is practicable.

(3) A member or officer referred to insubsection (1)shall, when he or she gives the notice under that subsection to the service provider concerned, give to the service provider a true copy of the authorisation pursuant to which the disclosure requirement is made.

(4) In proceedings for an offence, a document that purports to be a true copy of an authorisation undersection 6A, 6B, 6C, 6Dor6Eshall be admissible in evidence without further proof.

(5) For the purposes of this section, a document shall be deemed to be a true copy of an authorisation undersection 6A, 6B, 6C, 6Dor6Eif it has been certified as being a true copy of that authorisation by an authorising judge.]

7. Service provider to comply with disclosure request.

7.—F34[…]

7A. F35[Preservation order in respect of certain Schedule 2 data

7A.—(1) Without prejudice tosection 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a preservation order undersubsection (3)where the member is of the belief that theSchedule 2data in respect of which the application is made—

(a) 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) are otherwise required to be preserved for the purpose of safeguarding the security of the State.

(2) Without prejudice tosection 3A, a member of the Permanent Defence Forces not below the rank of commandant may apply to an authorising judge for a preservation order undersubsection (3)where the member is of the belief that theSchedule 2data in respect of which the application is made—

(a) 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) are otherwise required to be preserved for the purpose of safeguarding the security of the State.

(3) An authorising judge, as respects an application undersubsection (1)or(2), may make a preservation order under this subsection only if satisfied that—

(a)paragraph (a)or(b)ofsubsection (1)or(2), as the case may be, applies to theSchedule 2data in respect of which the application is made, and

(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.

(4) A preservation order undersubsection (3)may be made in respect ofSchedule 2data within the following categories:

(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58^3;

(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, including an order undersection 3Aor a preservation order under this Act, and

(c) such data, not referred to inparagraphs (a)or(b), being data the preservation of which the applicant is legally entitled to request, as may be specified by the authorising judge in the preservation order.

(5) Without prejudice tosection 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a preservation order undersubsection (8)where the member is of the belief that theSchedule 2data in respect of which the application is made—

(a) relate to a person whom the member suspects, on reasonable grounds of having committed a serious offence, or

(b) are otherwise required to be preserved for the purpose of—

(i) preventing, detecting, investigating or prosecuting a serious offence,

(ii) 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

(iii) determining the whereabouts of a missing person.

(6) Without prejudice tosection 3A, an officer of the Revenue Commissioners not below the rank of assistant principal officer may apply to an authorising judge for a preservation order undersubsection (8)where the officer is of the belief that theSchedule 2data in respect of which the application is made—

(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a revenue offence, or

(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a revenue offence.

F36[(7) Without prejudice tosection 3A, an officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to an authorising judge for a preservation order undersubsection (8)where theF37[officer]is of the belief that theSchedule 2data in respect of which the application is made—

(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a competition offence, or

(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a competition offence.]

(8) An authorising judge, as respects an application undersubsection (5), (6)or(7), may make a preservation order under this subsection only if satisfied that—

(a)paragraph (a)or(b)ofsubsection (5), (6)or(7), as the case may be, applies to theSchedule 2data in respect of which the application is made, and

(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.

(9) A preservation order undersubsection (8)may be made in respect ofSchedule 2data within the following categories:

(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58^4,

(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, other than a order undersection 3Aor a preservation order undersubsection (4), and

(c) such data, not referred to inparagraphs (a)or(b), being data that the applicant is legally entitled to request the preservation of which, as may be specified by the authorising judge in the preservation order.

(10) An application under this section shall—

(a) be made ex parte,

(b) be upon information on oath, specifying the grounds on which the order is sought,

(d) be heard otherwise than in public.

(11) A preservation order under this section, shall, while it is in effect, require the service provider specified in the order to preserve the Schedule 2 data in his or her possession or control—

(a) of such category or categories as are, in accordance withsubsection (4)or(9), specified in the order,

(b) such class or classes as are specified in the order, and

(12) For the purposes ofsubsection (11)(a), an authorising judge may specify a class or classes ofSchedule 2data by reference to one or more of the following:

(a) a particular location or locations;

(b) a particular geographical area or areas;

(d) a particular means of communication;

(e) a particular person or particular persons;

(f) such other matter or feature as the authorising judge considers appropriate.

(13) A preservation order shall have effect for 90 days, or such lesser period as may be specified in the order.

(14) Where a preservation order is made under this section, the applicant concerned shall, without delay, cause the order to be served on the service provider specified in the order.

(15) A service provider on whom a preservation order under this section is served shall comply with the order.]

7B. F38[Temporary Preservation Order in respect of certain Schedule 2 data in case of urgency

7B.—(1) Subject to this section, a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for a temporary preservation order undersubsection (3)where the member believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 7A(1)applies to theSchedule 2data in respect of which the application is made, and

(b) it is likely that, before theSchedule 2data could be obtained pursuant to a preservation order undersection 7A—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the security of the State would be compromised.

(2) Subject to this section, a member of the Permanent Defence Force not below the rank of commandant may apply to a superior officer for a temporary preservation order undersubsection (3)where the member believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 7A(2)applies to the Schedule 2 data in respect of which the application is made, and

(b) it is likely that, before theSchedule 2data could be obtained pursuant to a preservation order undersection 7A—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the security of the State would be likely to be compromised.

(3) A superior officer to whom an application undersubsection (1)or(2)is made shall make a temporary preservation order under this subsection only if satisfied that—

(a)paragraph (a)or(b)ofsubsection (1)or(2), as the case may be, applies to theSchedule 2data in respect of which the application is made, and

(b) the issuing of the order is necessary for, and proportionate to, the purposes for which an application is made.

(4) A temporary preservation order undersubsection (3)may be made in respect ofSchedule 2data within the following categories:

(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58^5,

(c) such data, not referred to inparagraphs (a)or(b), being data the preservation of which the applicant is legally entitled to request, as may be specified by the superior officer in the temporary preservation order.

(5) Subject to this section, a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for a temporary preservation order undersubsection (8)where the member believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 7A(5)applies to theSchedule 2data in respect of which the application is made, and

(b) it is likely that, before theSchedule 2data could be obtained pursuant to a preservation order undersection 7A—

(i) the data would be wholly or partly destroyed or otherwise renderedF39[unavailable, or]

(ii) the achievement of an objective specified insection 7A(5)(b)would beF39[impeded.]

(iii)F40[…]

(6) Subject to this section, an officer of the Revenue Commissioners not below the rank of assistant principal officer may apply to a superior officer for a temporary preservation order undersubsection (8)where the officer believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 7A(6)applies to theSchedule 2data in respect of which the application is made, and

(b) it is likely that, before theSchedule 2data could be obtained pursuant to a preservation order undersection 7A—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the prevention, detection, investigation or prosecution of a revenue offence would be impeded.

F41[(7) Subject to this section, an officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to a superior officer for a temporary preservation order undersubsection (8)where the officer believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 7A(7)applies to theSchedule 2data in respect of which the application is made, and

(b) it is likely that, before theSchedule 2data could be obtained pursuant to a preservation order undersection 7A—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the prevention, detection, investigation or prosecution of a competition offence would be impeded.]

(8) A superior officer to whom an application undersubsection (5), (6)or(7)is made shall make a temporary preservation order under this subsection only if satisfied that—

(a)paragraph (a)and(b)ofsubsection (5), (6)or(7), as the case may be, apply to theSchedule 2data in respect of which the application is made, and

(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.

(9) A temporary preservation order undersubsection (8)may be made in respect ofSchedule 2data within the following categories:

(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58^6,

(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, other than an order undersection 3Aor a preservation order undersection 7A(4), and

(c) such data, not referred to inparagraphs (a)or(b), being data the preservation of which the applicant is legally entitled to request to have so specified, as may be specified by the superior officer in the temporary preservation order.

(10) A temporary preservation order under this section shall, while it is in effect, require the service provider specified in the order to preserve the relevant data in his or her possession or control—

(a) of such category or categories as are, in accordance withsubsection (4)or(9), specified in the order,

(b) of such class or classes as are specified in the order, and

(11) For the purposes ofsubsection (10)(a), a superior officer may specify a class or classes of relevant data by reference to one or more of the following:

(a) a particular location or locations;

(b) a particular geographical area or areas;

(c) a particular period of time, not being more than 90 days, whether starting from the date on which the order is made or such future date as is specified in the order;

(d) a particular means of communication;

(e) a particular person or particular persons;

(f) such other matter or feature as the superior officer considers appropriate.

(12) A superior officer shall, not later than 8 hours after he or she makes an order under this section, prepare a record in writing of the order in such form as may be prescribed.

(13) (a) A superior officer shall, not later than 7 days after he or she makes an order under this section, prepare a report in relation to the making of the order.

(b) The record prepared in accordance withsubsection (12)in relation to an order shall be included in the report prepared under this section in relation to that order.

(14) A report prepared undersubsection (13)shall:

(a) in relation to an order made pursuant to an application undersubsection (1)or(5), be submitted by the superior officer concerned to a member of the Garda Síochána not below the rank of chief superintendent;

(b) in relation to an order made pursuant to an application undersubsection (2), be submitted by the superior officer concerned to a member of the Permanent Defence Force not below the rank of colonel;

(c) in relation to an order made pursuant to an application undersubsection (6), be submitted by the superior officer concerned to an officer of the Revenue Commissioners not below the rank of assistant secretary general;

F41[(d) in relation to an order made pursuant to an application undersubsection (7), be submitted by the superior officer concerned to an officer of the Competition and Consumer Protection Commission not below the rank of member of the Commission.]

(15) Subject toF39[subsection (21)], a superior officer shall, as soon as practicable and, in any event, not later than 72 hours after he or she makes an order under this section, apply to an authorising judge for affirmation of the order.

(16) An application underF39[subsection (15)]for affirmation of an order shall—

(a) be madeF39[ex parte,]

(b) be upon information on oath, specifying the reasons for which the order wasF39[made, and]

F42[(c) be heard otherwise than in public.]

(17) An authorising judge, on hearing an application undersubsection (15), shall consider whether the order was necessary for, and proportionate to, the purposes for which it was issued and may—

(a) affirm,

(b) vary, or

the order.

(18) An authorising judge who revokes, undersubsection (17)(c), an order may, where he or she considers it reasonable to do so, apply to the referee referred to insection 10to conduct an investigation under that section in relation to the matter.

(19) An application for an order under this section shall not be made to a superior officer who has had any involvement in the investigation, detection or prevention of a threat or apprehended threat to the security of the State that occasioned the making of the application and, accordingly, such a superior officer shall not consider such an application or make an order upon such an application.

(20) Subject tosubsection (21), an order under this section shall cease to have effect upon the expiration of 72 hours from the making of the order, or such shorter period as the superior officer may specify in the order.

(21) Where, due to exceptional circumstances that are beyond his or her control, a superior officer is unable to make an application undersubsection (15)within the period specified in that subsection, he or she—

(a) may extend the period during which the order concerned shall have effect by such further period as he or she considers necessary for, and proportionate to, the purpose for which the order was made, provided that the total period during which an order to which this subsection applies shall have effect shall not exceed 96 hours from the making of the order, and

(b) where he or she extends underparagraph (a)the period during which the order shall have effect, shall make an application undersubsection (15)before the order ceases to have effect.

(22) Where a temporary preservation order is made under this section, the applicant concerned shall, without delay, cause the order to be served on the service provider specified in the order.

(23) A service provider on whom a temporary preservation order is served shall comply with the order.]

7C. F43[Production order in respect of certain Schedule 2 data

7C.—(1) Without prejudice tosection 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a production order undersubsection (3)where the member is of the belief that theSchedule 2data in respect of which the application is made—

(a) 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) are otherwise required to be preserved for the purpose of safeguarding the security of the State.

(2) Without prejudice tosection 3A, a member of the Permanent Defence Forces not below the rank of commandant may apply to an authorising judge for a production order undersubsection (3)where the member is of the belief that theSchedule 2data in respect of which the application is made—

(a) 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) are otherwise required to be preserved for the purpose of safeguarding the security of the State.

(3) An authorising judge, as respects an application undersubsection (1)or(2), may make a production order under this subsection only if satisfied that—

(a)paragraph (a)or(b)ofsubsection (1)or(2), as the case may be, applies to theSchedule 2data in respect of which the application is made, and

(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.

(4) A production order undersubsection (3)may be made in respect ofSchedule 2data within the following categories:

(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58^7;

(c) such data, not referred to inparagraphs (a)or(b), being data that the applicant is legally entitled to request, as may be specified by the authorising judge in the production order.

(5) Without prejudice tosection 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a production order undersubsection (8)where the member is of the belief that theSchedule 2data in respect of which the application is made—

(a) relate to a person whom the member suspects, on reasonable grounds of having committed a serious offence, or

(b) are otherwise required to be preserved for the purpose of—

(i) preventing, detecting, investigating or prosecuting a serious offence,

(ii) 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

(iii) determining the whereabouts of a missing person.

(6) Without prejudice tosection 3A, an officer of the Revenue Commissioners not below the rank of assistant principal officer may apply to an authorising judge for a production order undersubsection (8)where the officer is of the belief that theSchedule 2data in respect of which the application is made—

(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a revenue offence, or

(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a revenue offence.

F44[(7) Without prejudice tosection 3A, an officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to an authorising judge for a production order undersubsection (8)where the officer is of the belief that theSchedule 2data in respect of which the application is made—

(a) relate to a person whom the officer suspects, on reasonable grounds, of having committed a competition offence, or

(b) are otherwise required to be preserved for the purpose of preventing, detecting, investigating or prosecuting a competition offence.]

(8) An authorising judge, as respects an application undersubsection (5), (6)or(7), may make a production order under this subsection only if satisfied that—

(a)paragraph (a)or(b)ofsubsection (5),(6)or(7), as the case may be, applies to theSchedule 2data in respect of which the application is made, and

(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.

(9) A production order undersubsection (8)may be made in respect ofSchedule 2data within the following categories:

(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58^8;

(c) such data, not referred to inparagraphs (a)or(b), being data that the applicant is legally entitled to request, as may be specified by the authorising judge in the production order.

(10) An application under this section shall—

(a) be madeex parte,

(b) be upon information on oath, specifying the grounds on which the order is sought,

(d) be heard otherwise than in public.

(11) A production order under this section shall, while it is in effect, require the service provider specified in the order to produce, as soon as is practicable, to the person specified in the order theSchedule 2data that in his or her possession or control on the date on which the order is served upon him or her—

(a) of such category or categories as are, in accordance withsubsection (4)or(9), specified in the order,

(b) such class or classes as are specified in the order, and

(12) For the purposes ofsubsection (11)(a), an authorising judge may specify a class or classes ofSchedule 2data by reference to one or more of the following:

(a) a particular location or locations;

(b) a particular geographical area or areas;

(d) a particular means of communication;

(e) a particular person or particular persons;

(f) such other matter or feature as the authorising judge considers appropriate.

(13) Where a production order is made under this section, the applicant concerned shall, without delay, cause the order to be served on the service provider specified in the order.

(14) A service provider on whom a production order is served shall comply with the order.]

7D. F45[Temporary Production Order in respect of certain Schedule 2 data in case of urgency

7D.—(1) Subject to this section, a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for a temporary production order undersubsection (3)where the member believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 7C(1)applies to theSchedule 2data in respect of which the application is made, and

(b) it is likely that, before theSchedule 2data could be obtained pursuant to a production order undersection 7C—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the security of the State would be compromised.

(2) Subject to this section, a member of the Permanent Defence Force not below the rank of commandant may apply to a superior officer for a temporary production order undersubsection (3)where the member believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 7C(2)applies to theSchedule 2data in respect of which the application is made, and

(b) it is likely that, before theSchedule 2data could be obtained pursuant to a production order undersection 7C—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the security of the State would be likely to be compromised.

(3) A superior officer to whom an application undersubsection (1)or(2)is made shall make a temporary production order under this subsection only if satisfied that—

(a)paragraph (a)or(b)ofsubsection (1)or(2), as the case may be, applies to theSchedule 2data in respect of which the application is made, and

(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.

(4) A temporary production order undersubsection (3)may be made in respect ofSchedule 2data within the following categories:

(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58^9;

(b) such data stored, retained or otherwise within the possession or control of a service provider under a contractual obligation or pursuant to a court order, including an order under section 3A or a preservation order under this Act, and

(c) such data, not referred to inparagraphs (a)or(b), being data that the applicant is legally entitled to request, as may be specified by the superior officer in the temporary production order.

(5) Subject to this section, a member of the Garda Síochána not below the rank of inspector may apply to a superior officer for a temporary production order undersubsection (8)where the member believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 7C(5)applies to theSchedule 2data in respect of which the application is made, and

(b) it is likely that, before theSchedule 2data could be obtained pursuant to a preservation order undersection 7C—

(i) the data would be wholly or partly destroyed or otherwise renderedF46[unavailable, or]

(ii) the achievement of an objective specified insection 7C(5)(b)would beF46[impeded.]

(iii)F47[…]

(6) Subject to this section, an officer of the Revenue Commissioners not below the rank of assistant principal officer may apply to a superior officer for a temporary production order undersubsection (8)where the officer believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 7C(6)applies to theSchedule 2data in respect of which the application is made, and

(b) it is likely that, before theSchedule 2data could be obtained pursuant to a production order undersection 7C—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the prevention, detection, investigation or prosecution of a revenue offence would be impeded.

F48[(7) Subject to this section, an officer of the Competition and Consumer Protection Commission not below the rank of assistant principal officer may apply to a superior officer for a temporary production order undersubsection (8)where the officer believes on reasonable grounds that—

(a)paragraph (a)or(b)ofsection 7C(7)applies to theSchedule 2data in respect of which the application is made, and

(b) it is likely that, before theSchedule 2data could be obtained pursuant to a production order undersection 7C—

(i) the data would be wholly or partly destroyed or otherwise rendered unavailable, or

(ii) the prevention, detection, investigation or prosecution of a competition offence would be impeded.]

(8) A superior officer to whom an application undersubsection (5), (6)or(7)is made shall make a temporary production order under this subsection only if satisfied that—

(a)paragraph (a)or(b)ofsubsection (5), (6)or(7), as the case may be, applies to theSchedule 2data in respect of which the application is made, and

(b) the issuing of the order is necessary for, and proportionate to, the purposes for which the application is made.

(9) A temporary production order undersubsection (8)may be made in respect ofSchedule 2data within the following categories:

(a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58^10;

(c) such data, not referred to inparagraphs (a)or(b), being data that the applicant is legally entitled to request, as may be specified by the superior officer in the temporary production order.

(10) A temporary production order under this section shall, while it is in effect, require the service provider specified in the order to produce to the person specified in the order theSchedule 2data in his or her possession or control on the date on which the order is served on him or her—

(a) of such category or categories as are, in accordance withsubsection (4)or(9), specified in the order,

(b) of such class or classes as are specified in the order, and

(11) For the purposes ofsubsection (10)(a), a superior officer may specify a class or classes of relevant data by reference to one or more of the following:

(a) a particular location or locations;

(b) a particular geographical area or areas;

(c) a particular period of time, not being more than 90 days, whether starting from the date on which the order is made or such future date as is specified in the order;

(d) a particular means of communication;

(e) a particular person or particular persons;

(f) such other matter or feature as the superior officer considers appropriate.

(12) A superior officer shall, not later than 8 hours after he or she makes an order under this section, prepare a record in writing of the order in such form as may be prescribed.

(13) (a) A superior officer shall, not later than 7 days after he or she makes an order under this section, prepare a report in relation to the making of the order.

(b) The record prepared in accordance withsubsection (12)in relation to an order shall be included in the report prepared under this section in relation to that order.

(14) A report prepared undersubsection (13)shall:

F48[(d) in relation to an order made pursuant to an application undersubsection (7), be submitted by the superior officer concerned to an officer of the Competition and Consumer Protection Commission not below the rank of member of the Commission.]

(15) Subject tosubsection (21), a superior officer shall, as soon as practicable and, in any event, not later than 72 hours after he or she makes an order under this section, apply to an authorising judge for affirmation of the order.

(16) An application undersubsection (15)for affirmation of an order shall—

(a) be madeF46[ex parte,]

(b) be upon information on oath, specifying the reasons for which the order wasF46[made, and]

F49[(c) be heard otherwise than in public.]

(17) An authorising judge, on hearing an application undersubsection (15), shall consider whether the order was necessary for, and proportionate to, the purposes for which it was issued and may—

(a) affirm,

(b) vary, or

the order.

(19) An application for an order under this section shall not be made to a superior officer who has had any involvement in the investigation, detection or prevention of—

(a) threat or apprehended threat to the security of the State, or

(b) serious offence, revenue offence or competition offence,

that occasioned the making of the application and, accordingly, such a superior officer shall not consider such an application or make an order upon such an application.

(b) where he or she extends underparagraph (a)the period during which the order shall have effect, shall make an application undersubsection (15)before the order ceases to have effect.

(22) Where a temporary production order is made under this section, the applicant concerned shall, without delay, cause the order to be served on the service provider specified in the order.

(23) A service provider on whom a temporary production order is served shall comply with the order.]

8. Processing for other purpose.

8.— Where all or part of the period specified in a data retention request coincides with the period during which any of the data specified in the request may, in accordance with law, be processed for purposes other than those specified in the request, nothing in section 6 shall prevent those data from being processed for those other purposes.

9. Statistics.

9.— (1) The Garda Commissioner shall prepare and submit a report to the Minister in respect of data specified in Schedule 2 that were the subject of all F50[disclosure requirements made by a member of the Garda Síochána undersection 6(1), 6F(1),F51[7Cor7D]] during the relevant period.

(2) The Chief of Staff of the Permanent Defence Force shall prepare and submit a report to the Minister for Defence in respect of data specified in Schedule 2 that were the subject of all F50[disclosure requirements made undersection 6(2), 6F(1),F51[7Cor7D]] during the relevant period.

(3) The Revenue Commissioners shall prepare and submit a report to the Minister for Finance in respect of data specified in Schedule 2 that were the subject of all F50[disclosure requirements made undersection 6(3), 6F(1),F51[7Cor7D]] during the relevant period.

F52[(3A) The Competition and Consumer Protection Commission shall prepare and submit a report to the Minister for Jobs, Enterprise and Innovation in respect of data specified inSchedule 2that were the subject of allF50[disclosure requirements made undersection 6(4), 6F(1),F51[7Cor7D]]during the relevant period.]

(4) A report under F53[subsection (1), (2), (3)or(3A)] shall be submitted as soon as is practicable after the end of the relevant period.

(5) The report shall include—

(a) the number of times when data had been disclosed in response to a F50[disclosure requirement],

(b) the number of times when a F50[disclosure requirement] could not be met,

(c) the average period of time between the date on which the retained data were first processed and the F51[date on which the disclosure requirement was made].

(6) The Minister for Defence shall review the report submitted under subsection (2) and shall forward it to the Minister, along with any comments that he or she may have with respect to it.

(7) The Minister for Finance shall review the report submitted under subsection (3) and shall forward it to the Minister, along with any comments that he or she may have with respect to it.

F52[(7A) The Minister for Jobs, Enterprise and Innovation shall review the report submitted undersubsection (3A)and shall forward it to the Minister, along with any comments that he or she may have with respect to it.]

(8) The Minister, on receipt of the report submitted under subsection (1) and the reports forwarded to him or her under F53[subsections (6), (7)and(7A)] shall review the reports and the comments and shall prepare a State report that consolidates those reports and submit it to the European Commission.

(9) A State report shall be submitted as soon as is practicable after the end of the relevant period.

(10) The State report shall include the matters referred to in subsection (5).

(11) For the purposes of this section, “relevant period” means—

(a) the period beginning on the day on which this Act commences and ending on the 31 December next following that day, and

(b) each successive 12 month period.

10. Complaints procedure.

10.— (1) A contravention of F54[section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7Cor7D] in relation to a F54[disclosure requirement] shall not of itself render that disclosure request invalid or constitute a cause of action at the suit of a person affected by the F54[disclosure requirement], but any such contravention shall be subject to investigation in accordance with the subsequent provisions of this section and nothing in this subsection shall affect a cause of action for the infringement of a constitutional right.

(2) A person who believes that data that relate to the person and that are in the possession of a service provider have been accessed following a F54[disclosure requirement] may apply to the Referee for an investigation into the matter.

(3) If an application is made under this section (other than one appearing to the Referee to be frivolous or vexatious), the Referee shall investigate—

(a) whether a F54[disclosure requirement] was made as alleged in the application, and

(b) if so, whether any provision of F54[section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7Cor7D] has been contravened in relation to the F54[disclosure requirement].

(4) If, after investigating the matter, the Referee concludes that a provision of F54[section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7Cor7D] has been contravened, the Referee shall—

(a) notify the applicant in writing of that conclusion, and

(b) make a report of the Referee’s findings to the Taoiseach.

(5) In addition, in the circumstances specified in subsection (4), the Referee may, if he or she thinks fit, by order do either or both of the following—

F55[(a)direct An Garda Síochána, the Permanent Defence Force, the Revenue Commissioners or the Competition and Consumer Protection Commission to destroy the relevant data and any copies of the data,]

(b) make a recommendation for the payment to the applicant of such sum by way of compensation as may be specified in the order.

(6) The Minister shall implement any recommendation under subsection (5) (b).

(7) If, after investigating the matter, the Referee concludes that section 6 has not been contravened, the Referee shall notify the applicant in writing to that effect.

(8) A decision of the Referee under this section is final.

(9) For the purpose of an investigation under this section, the Referee is entitled to access, and has the power to inspect, any official documents or records relating to the relevant application.

(10) Any person who was concerned in, or has information relevant to, the making of a F54[disclosure requirement] in respect of which an application is made under this section shall give the Referee, on his or her request, such information relating to F56[the requirement] as is in the person’s possession.

11. Amendment of section 8 (Review of operation of Act by judge of High Court) of Act of 1993.

11.— Section 8 of the Act of 1993 is amended by the substitution of the following for subsection (1):

“(1) The President of the High Court shall from time to time after consulting with the Minister invite a person who is a judge of the High Court to undertake (while serving as such a judge) the duties specified in this section and section 12 of the Communications (Retention of Data) Act 2011 and, if the invitation is accepted, the Government shall designate the judge for the purposes of this Act and the Communications (Retention of Data) Act 2011.

(1A) Subsection (1) does not affect the functions of the Data Protection Commissioner under section 10 of the Data Protection Act 1988.”.

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