Communications (Retention of Data) Act 2011
F8[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 under subsection (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 of Schedule 2 data pursuant to an order under this section, taking into account the impact of such retention on the fundamental rights of individuals.
(3) An application under subsection (1) shall—
(a) be made ex parte,
(b) be upon information on oath specifying the grounds on which the order is sought, which information shall include the assessment under subsection (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 under subsection (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 under subsection (1), may make an order under subsection (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 retain Schedule 2 data, or such Schedule 2 data 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 with section 12D, and
(c) subject to such conditions and directions as the relevant judge may specify in the order.
(6) Where a relevant judge makes an order under subsection (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
(c) a notice of the making of the order to be published in Iris Oifigiúil.
(7) A service provider shall comply with an order under subsection (5).
(8) The data to which this section applies include data relating to unsuccessful call attempts that, in the case of data specified in Part 1 of F9[Schedule 2], are stored in the State, or in the case of data specified in Part 2 of F9[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.]
Inserted (26.06.2023) by Communications (Retention of Data) (Amendment) Act 2022 (25/2022), s. 4, S.I. No. 287 of 2023, art. 3(c).
Substituted (1.08.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 78(b), S.I. No. 391 of 2023.