21st century policing: the Garda Síochána (Powers) Bill

Irish proposal would see controversial new laws introduced

Would you give your sister the password to your phone to show them a photograph? And if your friend needed to make a quick call, would you share your password with them? What if your father needed to use your hotspot because he, once again, couldn’t quite connect to the McDonald’s free wifi?

If you’re anything like me, you may not even be able to verbally respond to those questions, given the fact that you’re currently choking on your own laughter at the mere thought of sharing your password, even with those closest to you. 

If you’re not like me (lucky you), the answer to the three questions above is still probably a resounding no. Our passwords are just that: ours. They protect our valuable data from ending up in the wrong hands and it should be each person’s individual choice to keep them secret.

Cue the surprise of a nation, then, when it was announced yesterday that, among sweeping new police measures to be introduced in the Republic of Ireland, it will soon be a criminal offence to not supply police officers with the passwords or encryption keys to your electronic devices. 

This eye-catching proposal is not as cut-and-dry as some media outlets have led the Irish population to believe over the last 24 hours, so let’s set the record straight.

The Bill

The Irish police force (“An Garda Síochána” in the Irish language) is facing the possibility of seeing their powers greatly increased. The island nation, which boasts some of the lowest crime and murder rates in the European Union, plans to revamp its current legislation with the introduction and expansion of a whole host of crimes. 

The Garda Síochána (Powers) Bill will see a general increase in Garda powers, mainly in relation to stop and search procedures, as well as investigations. Under the proposed legislation, which was announced yesterday, refusing to supply investigating police officers with a password or encryption key for an electronic device could land you in prison for five years, or see you facing a fine of up to €30,000 for serious offences, with lesser offences still punishable by up to 12 months in prison and a fine of up to €5,000.

Other measures outlined in the document include: an increase in stop and search powers, including random vehicle searches when cases of child abduction and human trafficking are involved; and putting on statutory footing a suspect’s right to have legal representation present for Garda interviews. Gardaí (police officers) will also be able to detain someone until they verify that their identification details are correct.  

Justifiable measures?

I know what you’re thinking: how can police randomly stop people and demand access to their phones, laptops or smart watches? They can’t. The new measures would only be applicable where a warrant is involved. That is to say, if you are part of an investigation into a crime – including low-level drug offences, for example – you may be obliged to provide your passwords. 

The need for a warrant does not make this measure much less invasive, given that once someone has your password, they have access to everything on your device. That’s messages, photos, emails, bank details, account passwords and anything else you keep on your phone.

But wait, I hear you say, why would police need to detain someone to verify their identification details? Don’t people carry an ID with them at all times? Ireland, often caught somewhere between ancient history and the not-so-recent past, is a place where you do not have to carry identification with you at all times. As of today, if the police decided to stop you and ask for your details, you could merely give them a name and address and, provided you haven't done anything too out of line, you can be on your way. 

Why don’t they just provide people with a national ID card, complete with a photograph and a unique number that could be provided in the event that you do not have the card on your person? Why, indeed?

Playing catch-up

The Irish legal system is more complex than many, given that it is composed not just of constitutional law, statute and EU law, but also common law, a constant reminder of the country’s painful past as a testing ground for English (and, later, British) ideas. 

If the issue of the identification is a simple one to remedy – which it is – the question regarding passwords for devices is anything but. The fact of the matter is that crime is migrating online at an alarming rate. This shift has been compounded by the pandemic and just a few weeks ago, the country’s healthcare service was successfully targeted by hackers and personal details of millions of citizens were stolen.

This deviation online, however, does not justify the proposed legislation. Senior members of the Gardaí have welcomed the move, stating that it will help deal with “bulk crimes'', such as drug dealing, assault and theft. 

Logic would dictate that the new measures could then help to tackle the country’s gangland crime issues, given that gangs often participate in drug trafficking, theft and violent crimes. However, it’s been reported that sources within the force say this is unlikely, as gang members would prefer to refuse a police officer than to incriminate a fellow gang member. While this is probably true, it constitutes an outrageous admission from the force, essentially confirming that, although these new measures could be used to target members of organised crime groups, they do not appear up for the challenge.

Intrusive, overreaching and lacking oversight

Needless to say, the proposal has not been met with open arms. For starters, the use of these provisions will be governed by a non-binding code of practice. Simply put, the use of these new powers that Gardai will possess will be monitored by a set of rules that are not enforceable by law and are drawn up by the Garda Commissioner. Internal investigations into police malpractice, what could possibly go wrong?

The need for a warrant will not slow police officers down, either. Under the legislation, warrants, which are traditionally related to a particular location, can give police access to someone’s entire digital life which, as mentioned earlier, constitutes a massive part of someone’s life in modern society. 

Furthermore, these warrants could now be issued by police superintendents in urgent circumstances –note that the term urgent is not defined anywhere in the document– instead of coming directly from a judge. This practice of self-serving warrants was discontinued a number of years ago in the country.

There is a degree of good intention contained within the Bill, such as the required report on all stop and search procedures. This information would, hopefully, be used to monitor and prevent racial, gender or similar biases when it comes to who is being apprehended.

Unfortunately, the proposal represents one step forward and two steps back. Ireland has a unique police force. It is one that usually does its job without using intimidation and force, unlike comparable forces in neighbouring countries, as well as countries further afield. The fact that fewer than one-in-five Irish police officers carry a firearm is something to celebrate.  

These new measures, however, would see new laws introduced that are not proportional to the crimes they are attempting to prosecute. They have not been properly thought through and the idea of them being governed by an internal code of practice is nothing short of laughable.

The digitalisation of our lives is not going to let up anytime soon and as you become more dependent on your devices, you should be able to rest easy, confident in the knowledge that the only person who knows your passwords is you. 

Oh and, by the way, p455w0rd is not a good password.