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new law New powers will allow gardaí to demand computer passwords

It is hoped this will fast-track the gardaí’s ability to access materials on devices.

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Communicating via mobile phone and laptop

Communicating via mobile phone and laptop

Getty Images/Science Photo Libra

Communicating via mobile phone and laptop

Gardaí are moving closer to obtaining new powers that would compel suspects in serious crime investigations to hand over passwords to their computers and electronic devices.

Department of Justice officials are preparing a piece of legislation to implement a recommendation by the Commission on the Future of Policing in Ireland to codify police powers of search, arrest and detention.

Officials say that, as part of the police powers bill, the inclusion of a provision giving gardaí the right to seek computer passwords is being considered. It is hoped this will fast-track the gardaí’s ability to access materials on devices.

Earlier this year, Garda Commissioner Drew Harris called for gardaí to be given those powers during investigations into child abuse imagery.

He also stated that officers should be given an “electronic key” to allow access to encrypted platforms, such as WhatsApp.

The Department of Justice is also committed to drafting a cybercrime bill that would give effect to provisions of the Budapest Convention on Cybercrime, which are not already covered in domestic legislation.

The password issue is being considered in the context of that bill, which will include the power to issue production and preservation orders in relation to data.

The Budapest Convention was signed by Ireland in 2002 but ratification has been delayed since then.

This is due to what are described as “unforeseen delays along the way, largely reflecting developments at European level”.

The vast majority of the provisions in the Budapest Convention are already included in Irish law, including an act introduced in 2017 giving effect to an EU directive on attacks against information systems.

The new counter-terrorism agenda, which has been drawn up by the European Commission, commits it to work with member states to identify possible legal, operational and technical solutions for lawful access to
encrypted information.

It also commits it to promoting an approach which maintains the use of encryption to protect privacy and security of communications while providing an effective response to crime and terrorism.

EU Home Affairs ministers, including Ireland’s Justice Minister Helen McEntee, have underlined the importance of devising a way forward on data retention for crime-fighting purposes, while taking into
account a number of European Court of Justice rulings on the issue.

Ireland supported a resolution emphasising support for encryption as a necessary means of protecting fundamental rights and digital security.

The resolution also called for the preservation of the ability
of law enforcement to exercise lawful powers to access electronic evidence to investigate serious crimes.

Ratification of the Budapest Convention and, by extension, the password powers, are being viewed by the gardaí as key tools in the legislative back-up they need to tackle cybercrime.

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