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Judicial Oversight of Surveillance: The Case of Ireland in Comparative Perspective

This is a draft chapter that has been accepted for publication by Edward Elgar Publishing in Judges as Guardians of Constitutionalism and Human Rights, edited by Martin Scheinin, Helle Krunke, and Marina Aksenova, 2016 (Forthcoming)

20 Pages Posted: 25 Nov 2015 Last revised: 30 Nov 2015

T. J. McIntyre

UCD Sutherland School of Law

Date Written: 2015

Abstract

This chapter examines how judicial oversight can regulate state surveillance, with a particular focus on Irish, European Convention on Human Rights (ECHR) and European Union (EU) law.

It begins by considering the general arguments for judicial oversight and the types of oversight structures which can be used, from ex ante authorisation to ex post review and the variants in between.

It then examines the extent to which Irish, ECHR and EU law require judicial oversight in particular circumstances - particularly in light of the landmark decision of the Court of Justice in Digital Rights Ireland v. Minister for Communications invalidating the Data Retention Directive.

Next, it takes as a case study the Irish experience of data retention and discusses how judicial oversight of data retention has operated and why it has failed to secure the rights of the individual.

It concludes with suggestions for improving the effectiveness of judicial oversight surveillance.

Keywords: surveillance, communications, interception of communications, data retention, judiciary, privacy, warrants, ECHR

JEL Classification: K14, K42

Suggested Citation

McIntyre, T. J., Judicial Oversight of Surveillance: The Case of Ireland in Comparative Perspective (2015). This is a draft chapter that has been accepted for publication by Edward Elgar Publishing in Judges as Guardians of Constitutionalism and Human Rights, edited by Martin Scheinin, Helle Krunke, and Marina Aksenova, 2016 (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2694512

T. J. McIntyre (Contact Author)

UCD Sutherland School of Law ( email )

University College Dublin
Belfield
Dublin 4
Ireland

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