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 F36[unavailable, or]

(ii) the achievement of an objective specified in section 7A(5)(b) would be F36[impeded.]

(iii) F37[…]

(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.

F38[(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;

F38[(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 F36[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 F36[subsection (15)] for affirmation of an order shall—

(a) be made F36[ex parte,]

(b) be upon information on oath, specifying the reasons for which the order was F36[made, and]

F39[(c) be heard otherwise than in public.]

(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.]