24-07-2025
Government urged to clarify military intelligence powers in new phone tapping legislation
An oversight judge on phone tapping said it was 'imperative' the Government urgently clarified in law the roles and powers of military intelligence in safeguarding the security of the State.
In his 2025 report, Mr Justice Tony O'Connor said the Defence Forces recently built a new high-security facility for the Irish Military Intelligence Service (IMIS).
The service moved into the building last March, but the service is still awaiting Government measures to modernise and legislate for its national security remit.
Mr O'Connor is the designated judge for the Interception of Postal Packets and Telecommunications Messages Act 1993 and Communications (Retention of Data) Act 2011, as amended by the 2022 act.
In his report to the Taoiseach for May 1, 2024, to April 1, 2025, Judge O'Connor repeated his calls for online communication, including encrypted services to be included in the laws. This includes Gmail, Outlook, Microsoft Teams, FaceTime, Facebook Messenger and WhatsApp.
The interception legislation is now 32 years old and successive governments have promised updated laws, with the current administration telling the Dáil a draft bill is due later this year.
An Garda Síochána and the Defence Forces utilise powers of interception, the former for the investigation of serious crime and State security and the latter for State security only.
Other agencies, such as Revenue and Fiosrú (formerly Gsoc), have powers under the 2011 act on communication (not content) data.
The role of designated judges have now been taken over by the new independent examiner of security.
Mr O'Connor, like designated judges before him, does not provide statistical data on the number of phone interceptions, with Mr O'Connor maintaining he sees 'little merit' in doing so.
The High Court judge said applications from the gardaí were 'low' and were 'down in numbers', adding all were granted by the minister for justice.
'The number of authorisations granted pursuant to section 4 [serious offence investigations] were not significantly higher than those made under section 5 [security of the State],' the judge said.
In his previous, 2024 report, he said the number of interceptions 'relative to the State's population size appear low'.
He said the existing and anticipated developments on communication known to An Garda Síochána 'should be accommodated' in the new legislation.
Mr Justice O'Connor said military intelligence moved to a 'new bespoke secured facility' last March.
'The new facility is a welcome development and affords a modern and professional aspect,' he said. 'The new building is purpose-built to top secret clearances and security specifications.'
He said the old Irish Military Intelligence Service building, which they had used since the 1980s, was transferred to new Joint Cyber Defence Command in May.
Judge O'Connor pointed out military intelligence uses the acts only in matters relating to the security of the State and the integrity of its institutions. It is for intelligence purposes only.
The report said the use of the 1993 and 2011 acts for military intelligence 'was limited' over the last 11 months, but added the 'significance and value of those provisions for the PDF should not be underestimated'.
He said he supported the 'urgent call' made by the Commission on the Defence Forces in its February 2022 report for clarification of the role, functions and powers of military intelligence in new legislation.
'There is an imperative to clarify the role, functions and powers of the IMIS in underpinning legislation,' he said.
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