A Luxembourg court has ruled on Tuesday that Ireland’s system for retaining and accessing mobile phone metadata – which helped secure the conviction of Graham Dwyer – violated European Union law. The ruling stated that EU law prohibited the general and indiscriminate retention of traffic and location data in electronic communications for the purpose of combating serious crime, a decision based on a landmark decision in 2014 that limited the ability of police and intelligence services to extract huge amounts of data. The ruling reinforced a long-running effort by Dwyer to overturn his 2015 conviction for the murder of Elaine O’Hara. Dwyer, a successful architect, killed a kindergarten worker in August 2012 after treating her for sadomasochistic fantasies involving stabbing women during sex. He committed what prosecutors called “almost perfect murder”, but was arrested and sentenced to life in prison after police monitored his movements via text messages and phone data. There were no witnesses or physical evidence. Dwyer appealed, arguing that the retention and access to his mobile phone data violated EU law. The Supreme Court of Ireland referred the appeal to the ECJ. His decision was expected due to previous rulings that governments and service providers do not have broad rights to retain citizen data. The court said the fight against crime in the 27-nation bloc does not justify retaining data that could violate the privacy rights of entire populations. Even very serious crimes could not be dealt with in the same way as threats to national security, he said. However, a real or current or predictable threat could justify indiscriminate data retention for a limited period of time. Proponents of her case have been working to make the actual transcript of this statement available online. Ireland’s spokesman Patrick Costello said Tuesday’s decision was not a surprise. “Ireland has been repeatedly criticized for our national policies on privacy and data retention by numerous crises, industry and militants.” Dwyer’s appeal will now be returned to the Supreme Court of Ireland. Justice Secretary Helen McEntee said the Irish government had taken note of the ECJ ruling and was waiting for further “clarity” when the Supreme Court ruled on Dwyer’s case.
