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TJ McIntyre
@tjmcintyre
, 5 tweets, 1 min read Read on Twitter
Data protection twitter! A competition.

A pint or frosty beverage of your choice to anyone who can explain to me how s.41 of the Data Protection Act 2018 gets to add a whole new legal basis into Article 6 GDPR. irishstatutebook.ie/eli/2018/act/7…

1/
Perhaps it’s a restriction under Article 23 GDPR? Maybe… it’s not just a restriction of specific rights but a whole new ground. But if it is - where are the “specific provisions” and safeguards under Article 23? 2/
Maybe it’s an Article 6(2) GDPR “more specific provision”? But s.41 applies generally, not just tasks in the public interest, or exercise of official authority.

Even if it is, where are the “specific provisions” and safeguards under Article 6(3)? 3/
I should have specified that this is s.41 of the *Irish* DPA2018. Apologies for the confusion. 4/
Here’s why it matters. Firms like Facebook relied heavily on sharing user data with police voluntarily under s.8b of the old Data Protection Acts 1988 and 2003. Does s.41 DPA 2018 allow them to continue? And is s.41 permissible under the GDPR? 5/
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TJ McIntyre
@tjmcintyre
Quick Q&A:

1. Does it mean GD’s conviction is overturned? No. That’s a matter for the Court of Appeal.

2. Will the Court of Appeal do so? Probably not. There are exceptions for evidence gathered lawfully at the time, which becomes unlawful due to “subsequent legal developments"
3. What about the rule that evidence must be excluded if obtained by a “deliberate and conscious” breach of rights?

This is more difficult. Does the state fail this test when it knows that there is a CJEU judgment striking down the underlying EU law? The timeline matters here.
The Supreme Court in JC was very hostile to the idea that evidence would be inadmissible due to later judgments, even if there are “doubts”:
Read 6 tweets
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TJ McIntyre
@tjmcintyre
How does Irish policing handle digital forensics? Let’s look at two cases reported today. In one, a rape of a girl by her stepfather, there was a five year delay in examining a seized computer. The second, child abuse images, saw a seven year delay. 1/
These delays are at the high end but are unfortunately typical of a system which has been chronically underfunded. Even in recent cases there seems to be a 1-2 year delay in forensic examination: kildarestreet.com/wrans/?id=2018… 2/
Here’s what the Policing Authority had to say a few months ago. (They weren’t impressed.) /3
Read 5 tweets
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TJ McIntyre
@tjmcintyre
I spoke earlier at the #DataSummitDublin about cross-border access to data by police. It was a relatively short presentation (and I was a bit rushed by arriving late!) so there might be a couple of points worth expanding on. 1/
First - notification. A big issue in the caselaw and for surveillance oversight is whether individuals are notified that they have been put under surveillance or their data accessed. I’ve covered that here (p.12 on): researchrepository.ucd.ie/bitstream/1019… 2/
Does the Commission e-evidence proposal address that? It does provide for notification in some circumstances. 3/
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