Edited by Martin Scheinin, Helle Krunke and Marina Aksenova
Chapter 7: Judicial oversight of surveillance: the case of Ireland in comparative perspective
Dr. TJ McIntyre, UCD Sutherland School of Law and Digital Rights Ireland. This chapter addresses the challenges of judicial oversight of secret methods of surveillance, where the traditional approach has been to rely on an aggregate of judicial and non-judicial methods of oversight that jointly can amount to effective oversight. With reference to the landmark case of Digital Rights Ireland at the Court of Justice of the European Union, where the author was involved as the chairperson of the lead plaintiff, and the emphasis put by the Court on ex ante judicial authorisation of data retention measures, the author calls for a greater role for judicial oversight but not without careful thinking of what the modalities of effective judicial oversight of secret surveillance can be. This is necessitated, inter alia, by the rapid developments of surveillance technologies. The author warns against a narrow perception of the oversight role of a judge, pertaining to narrow questions of legality, to the detriment of broader issues of policy, proportionality and effectiveness. The chapter identifies a need to specify the judicial role in some detail in legislation and also to involve data protection authorities in oversight, besides the judiciary itself.
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