COMMUNICATIONS (RETENTION OF DATA) (AMENDMENT) ACT 2022

“Preservation order in respect of certain Schedule 2 data

7A. (1) Without prejudice to section 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a preservation order under subsection (3) where the member is of the belief that the Schedule 2 data 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 to section 3A, a member of the Permanent Defence Forces not below the rank of commandant may apply to an authorising judge for a preservation order under subsection (3) where the member is of the belief that the Schedule 2 data 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 under subsection (1) or (2), may make a preservation order under this subsection only if satisfied that—

  • (a) paragraph (a) or (b) of subsection (1) or (2), as the case may be, applies to the Schedule 2 data 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 under subsection (3) may be made in respect of Schedule 2 data within the following categories:

  • (a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58³;

  • (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 in paragraphs (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 to section 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a preservation order under subsection (8) where the member is of the belief that the Schedule 2 data 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 to section 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 under subsection (8) where the officer is of the belief that the Schedule 2 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.

• (7) Without prejudice to section 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 under subsection (8) where the member is of the belief that the Schedule 2 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.

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

  • (a) paragraph (a) or (b) of subsection (5), (6) or (7), as the case may be, applies to the Schedule 2 data 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 under subsection (8) may be made in respect of Schedule 2 data within the following categories:

  • (a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58⁴,

  • (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 under section 3A or a preservation order under subsection (4), and

  • (c) such data, not referred to in paragraphs (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,

  • (c) specify, by reference to the criteria specified in subsection (12), the terms of the order sought, and

  • (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 with subsection (4) or (9), specified in the order,

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

  • (c) subject to such conditions and directions as may be specified in the order.

• (12) For the purposes of subsection (11)(a), an authorising judge may specify a class or classes of Schedule 2 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;

  • (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.

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 under subsection (3) where the member believes on reasonable grounds that—

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

- (b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 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 under subsection (3) where the member believes on reasonable grounds that—

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

  • (b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 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 under subsection (1) or (2) is made shall make a temporary preservation order under this subsection only if satisfied that—

  • (a) paragraph (a) or (b) of subsection (1) or (2), as the case may be, applies to the Schedule 2 data 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 under subsection (3) may be made in respect of Schedule 2 data within the following categories:

  • (a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58⁵,

  • (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 in paragraphs (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 under subsection (8) where the member believes on reasonable grounds that—

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

  • (b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 7A—

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

    • (ii) the achievement of an objective specified in section 7A(5)(b) would be impeded, or

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

• (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 under subsection (8) where the officer believes on reasonable grounds that—

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

  • (b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 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.

• (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 under subsection (8) where the officer believes on reasonable grounds that—

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

  • (b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 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 under subsection (5), (6) or (7) is made shall make a temporary preservation order under this subsection only if satisfied that—

  • (a) paragraph (a) and (b) of subsection (5), (6) or (7), as the case may be, apply to the Schedule 2 data 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 under subsection (8) may be made in respect of Schedule 2 data within the following categories:

  • (a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58⁶,

  • (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 under section 3A or a preservation order under section 7A(4), and

  • (c) such data, not referred to in paragraphs (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 with subsection (4) or (9), specified in the order,

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

  • (c) subject to such conditions and directions as may be specified in the order.

• (11) For the purposes of subsection (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 with subsection (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 under subsection (13) shall:

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

  • (d) in relation to an order made pursuant to an application under subsection (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 to subsection (18), 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 under subsection (21) for affirmation of an order shall—

  • (a) be made ex parte, and

  • (b) be upon information on oath, specifying the reasons for which the order was made.

• (17) An authorising judge, on hearing an application under subsection (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

  • (c) revoke,

  the order.

• (18) An authorising judge who revokes, under subsection (17)(c), an order may, where he or she considers it reasonable to do so, apply to the referee referred to in section 10 to 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 to subsection (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 under subsection (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 under paragraph (a) the period during which the order shall have effect, shall make an application under subsection (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.

Production order in respect of certain Schedule 2 data

7C. (1) Without prejudice to section 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a production order under subsection (3) where the member is of the belief that the Schedule 2 data 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 to section 3A, a member of the Permanent Defence Forces not below the rank of commandant may apply to an authorising judge for a production order under subsection (3) where the member is of the belief that the Schedule 2 data 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 under subsection (1) or (2), may make a production order under this subsection only if satisfied that—

  • (a) paragraph (a) or (b) of subsection (1) or (2), as the case may be, applies to the Schedule 2 data 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 under subsection (3) may be made in respect of Schedule 2 data within the following categories:

  • (a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58⁷;

  • (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 in paragraphs (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 to section 3A, a member of the Garda Síochána not below the rank of inspector may apply to an authorising judge for a production order under subsection (8) where the member is of the belief that the Schedule 2 data 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 to section 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 under subsection (8) where the officer is of the belief that the Schedule 2 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.

• (7) Without prejudice to section 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 under subsection (8) where the officer is of the belief that the Schedule 2 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.

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

  • (a) paragraph (a) or (b) of subsection (5), (6) or (7), as the case may be, applies to the Schedule 2 data 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 under subsection (8) may be made in respect of Schedule 2 data within the following categories:

  • (a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58⁸;

  • (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 under section 3A or a preservation order under section 7A(4), and

  • (c) such data, not referred to in paragraphs (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 made ex parte,

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

  • (c) specify, by reference to the criteria specified in subsection (12), the terms of the order sought, and

  • (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 the Schedule 2 data 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 with subsection (4) or (9), specified in the order,

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

  • (c) subject to such conditions and directions as may be specified in the order.

• (12) For the purposes of subsection (11)(a), an authorising judge may specify a class or classes of Schedule 2 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;

  • (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.

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 under subsection (3) where the member believes on reasonable grounds that—

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

- (b) it is likely that, before the Schedule 2 data could be obtained pursuant to a production order under section 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 under subsection (3) where the member believes on reasonable grounds that—

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

  • (b) it is likely that, before the Schedule 2 data could be obtained pursuant to a production order under section 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 under subsection (1) or (2) is made shall make a temporary production order under this subsection only if satisfied that—

  • (a) paragraph (a) or (b) of subsection (1) or (2), as the case may be, applies to the Schedule 2 data 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 under subsection (3) may be made in respect of Schedule 2 data within the following categories:

  • (a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58⁹;

  • (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 in paragraphs (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 under subsection (8) where the member believes on reasonable grounds that—

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

  • (b) it is likely that, before the Schedule 2 data could be obtained pursuant to a preservation order under section 7C—

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

    • (ii) the achievement of an objective specified in section 7C(5)(b) would be impeded, or

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

• (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 under subsection (8) where the officer believes on reasonable grounds that—

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

  • (b) it is likely that, before the Schedule 2 data could be obtained pursuant to a production order under section 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.

• (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 under subsection (8) where the officer believes on reasonable grounds that—

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

  • (b) it is likely that, before the Schedule 2 data could be obtained pursuant to a production order under section 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 under subsection (5), (6) or (7) is made shall make a temporary production order under this subsection only if satisfied that—

  • (a) paragraph (a) or (b) of subsection (5), (6) or (7), as the case may be, applies to the Schedule 2 data 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 under subsection (8) may be made in respect of Schedule 2 data within the following categories:

  • (a) such data stored by a service provider on the basis of Articles 5, 6 and 9 of Directive 2002/58¹⁰;

  • (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 under section 3A or a preservation order under section 7A(4), and

  • (c) such data, not referred to in paragraphs (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 the Schedule 2 data 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 with subsection (4) or (9), specified in the order,

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

  • (c) subject to such conditions and directions as may be specified in the order.

• (11) For the purposes of subsection (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 with subsection (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 under subsection (13) shall:

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

  • (d) in relation to an order made pursuant to an application under subsection (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 to 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 under subsection (15) for affirmation of an order shall—

  • (a) be made ex parte, and

  • (b) be upon information on oath, specifying the reasons for which the order was made.

• (17) An authorising judge, on hearing an application under subsection (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

  • (c) revoke,

  the order.

• (18) An authorising judge who revokes, under subsection (17)(c), an order may, where he or she considers it reasonable to do so, apply to the referee referred to in section 10 to 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, 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.

• (20) Subject to subsection (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 under subsection (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 under paragraph (a) the period during which the order shall have effect, shall make an application under subsection (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. Insertion of sections 12A to 12J in Principal Act

8. The Principal Act is amended by the insertion of the following sections after section 12:

“Offences

12A. (1) A person who contravenes sections 3(1), 3A(7), 3B(1), 6(8), 6F(2), 7A(15), 7B(23), 7C(14) or 7D(23) shall be guilty of an offence.

• (2) A person guilty of an offence under this section shall be liable—

  • (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

  • (b) on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 5 years or both.

• (3) In proceedings for an offence under subsection (1), it shall be a defence for a person against whom such proceedings are brought to prove that the person took all reasonable steps and exercised all due diligence to avoid the commission of the offence.

• (4) Where an offence under this section is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

Amendment of Schedule 2

12B. (1) The Minister may, following consultation with the Minister for Environment, Climate and Communications and in accordance with this section, by regulation amend Schedule 2, where he or she is satisfied that it is necessary to do so in order to ensure that the matters specified in the Schedule adequately reflect developments in electronic communications technology and include data transmitted by means of such technology.

• (2) The Minister in exercising the power under subsection (1), may consult with such persons possessing expertise in the area of electronic communications technology as he or she considers appropriate.

Guidelines

12C. The Minister may issue guidelines—

- (a) to persons with respect to the making of applications under sections 7A, 7B, 7C and 7D, and

- (b) to facilitate compliance by service providers with preservation and production orders.

  **Retention of data**

  **12D.** A service provider who is required under section 3(1), 3A(5), 3B(1), 7A(11) or 7B(10) to retain or, as may be appropriate, preserve data shall retain or preserve, as the case may be, those data—

- (a) in such a way that they may be disclosed without undue delay pursuant to a disclosure request, and

- (b) in accordance with regulations, if any, under section 12F(2)(a).

  **Criteria for specification of geographic area**

  **12E.** A person who, under a provision of this Act, specifies a class or classes of Schedule 2 data by reference to a particular geographical area or areas, shall do so by reference to criteria that are objective and non-discriminatory and, for that purpose, shall have regard to the criteria specified in regulations under section 12F(2)(b) (if any).

  **Regulations**

  **12F.** (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

• (2) The Minister may by regulations provide for one or more of the following:

  • (a) the technical requirements to be met by a person who is obliged under this Act to retain or preserve data, including the requirements to be met so as to ensure that data so retained or preserved, when required under this Act to be disclosed—

    • (i) may be disclosed without delay, and

    • (ii) are of sufficient quality to be used for the purposes for which the disclosure is required;

  • (b) the criteria, which shall be objective and non-discriminatory, to which a person shall have regard when specifying a class or classes of Schedule 2 data by reference to a particular geographic area, which may include:

    • (i) the rate of crime in an area;

    • (ii) the number of persons normally present in the area;

    • (iii) the presence in the area of strategic infrastructure;

  • (c) the procedures for making an application under sections 6, 6A, 6B, 6C, 6D, 6E, 6F, 7A, 7B, 7C or 7D.

• (3) Without prejudice to any provision of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

• (4) Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Notification of data subject

12G. (1) Subject to subsection (2), where Schedule 2 data have been disclosed to a person pursuant to a requirement under section 6F(1), 7C or 7D, the Garda Commissioner, the Chief of Staff of the Defence Forces, the Chairman of the Revenue Commissioners, the Chairperson of the Competition and Consumer Protection Commission, as may be appropriate, shall, in accordance with regulations under this section, cause to be given to the person to whom the data relate a notice in writing informing him or her of the disclosure of the data concerned.

• (2) Without prejudice to the generality of subsection (1), regulations under this section may provide for any one or more of the following:

  • (a) the form of the notice to be given under subsection (1);

  • (b) the information to be provided in that notice, including—

    • (i) the date on which the Schedule 2 data were disclosed pursuant to the requirement concerned,

    • (ii) the date on which the requirement was made, and

    • (iii) the date of the authorisation under section 6A or 6B, the production order under section 7C or temporary production order under section 7D, in respect of the data;

  • (c) the persons who shall be consulted before such a notice is given in accordance with this section;

  • (d) the determination of the point in time and circumstances in which a notice should be given having regard to the overriding consideration that this section shall not operate to—

    • (i) impede the prevention, detection, investigation or prosecution of any serious offence,

    • (ii) undermine the security of the State, or

    • (iii) endanger the life or personal safety of any person;

  • (e) the classes of information that shall not be included in a notice under subsection (1) having regard to the overriding consideration referred to in paragraph (d);

  • (f) the categories of persons (other than the person to whom the data relate) whose interests are materially affected by the disclosure of traffic and location data pursuant to a disclosure requirement.

• (3) This section shall not apply to Schedule 2 data that have been disclosed in compliance with a disclosure requirement made pursuant to—

  • (a) an authorisation issued under section 6A(5),

  • (b) an authorisation affirmed or varied under section 6B(11),

  • (c) a production order made under section 7C(3), or

  • (d) a production order affirmed or varied under section 7D(17).

  Service of documents

  12H. (1) A notice or other document that is required to be served on or given to a person under this Act shall be addressed to the person concerned by name and shall be so served on or given to the person—

  • (a) by electronic means,

  • (b) by delivering it to the person,

  • (c) by leaving it at the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, at that address,

  • (d) by sending it by post in a prepaid registered letter or by any other form of recorded delivery service to the address referred to in paragraph (c).

• (2) For the purposes of this section, a company within the meaning of the Companies Act 2014 is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

Processing of personal data

12I. Personal data that are disclosed to a member of the Garda Síochána, a member of the Permanent Defence Forces, an officer of the Revenue Commissioners or an officer of the Competition and Consumer Protection Authority, pursuant to a requirement under section 6(1), 6E(1), 6F(1), 7C(11) or 7D(10) made for the purposes of the prevention, detection, investigation or prosecution of criminal offences, shall be processed in accordance with Part 5 of the Data Protection Act 2018.

Provisions relating to authorising judge

12J. (1) The President of the District Court shall designate such and so many judges of the District Court to be authorising judges for the purposes of this Act.

• (2) An application to an authorising judge under sections 6A, 6B, 6C, 6D, 7A, 7B, 7C or 7D may be made—

  • (a) whether or not the service provider in respect of whom the authorisation is issued is resident or located in the District Court district to which the authorising judge stands assigned, and

  • (b) whether or not the data to which the authorisation applies is retained by the service provider within the District Court district to which the authorising judge stands assigned.”.

9. Transitional provision

9. The Principal Act is amended by the insertion of the following section after section 13:

“13A. Where, immediately before the date on which section 10 of the Communications (Retention of Data) (Amendment) Act 2022 comes into operation, data is retained by a service provider pursuant to the service provider’s obligation under section 3 (before its amendment by section 3 of the Communications (Retention of Data) (Amendment) Act 2022), the service provider shall, on and from that date, and for the purposes of compliance with disclosure requirements made pursuant to an authorisation under section 6A or 6B, continue to retain such data until the earlier of the following events:

• (a) the expiry of a period of 6 months beginning on that date, or

• (b) the making of the first order under section 3A.”.

10. Miscellaneous amendments of Principal Act

10. (1) Section 4(1) of the Principal Act is amended:

• (a) by the substitution of “section 3(1), 3A(5), 3B(1), 7A(11) or 7B(10) ” for “section 3(1) ”, and

• (b) by the substitution of the following paragraph for paragraph (d) :

• “(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) Section 5(b) of the Principal Act is amended by the substitution of “disclosure requirement” for “disclosure request”.

• (3) The Principal Act is amended by the deletion of section 7.

• (4) Section 9 of the Principal Act is amended—

• (a) in subsection (1), by the substitution of “disclosure requirements made by a member of the Garda Síochána under section 6(1), 6F(1), 7C(1) or 7D(1) ” for “disclosure requests made under section 6(1) ”,

• (b) in subsection (2), by the substitution of “disclosure requirements made under section 6(2), 6F(1), 7C(2) or 7D(2) ” for “disclosure requests made under section 6(2)”,

• (c) in subsection (3), by the substitution of “disclosure requirements made under section 6(3), 6F(1), 7C(6) or 7D(6) ” for “disclosure requests made under section 6(3)”,

• (d) in subsection (3A), by the substitution of “disclosure requirements made under section 6(4), 6F(1), 7C(7) or 7D(7) ” for “disclosure requests made under section 6(3A)”, and

• (e) in subsection (5) by the substitution of “disclosure requirement” for “disclosure request” in each place in which it occurs.

• (5) Section 10 of the Principal Act is amended—

• (a) by the substitution of “disclosure requirement” for “disclosure request” in each place in which it occurs,

• (b) in subsection (1), by the substitution of “section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7C or 7D” for “section 6”,

• (c) in subsection (3), by the substitution of “section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7C or 7D” for “section 6”, and

• (d) in subsection (4), by the substitution of “section 6, 6A, 6B, 6C, 6D, 6E, 6F, 7C or 7D” for “section 6”.

• (6) Section 12 of the Principal Act is amended by the substitution of “disclosure requirement” for “disclosure request” in each place in which it occurs.

11. Short title and commencement

11. (1) This Act may be cited as the Communications (Retention of Data) (Amendment) Act 2022.

• (2) This Act shall come into operation on such day or days as the Minister for Justice may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

Footnotes