‘There’s no place like home’ - Does Schrems v Data Protection Commissioner stretch Article 40.5 to breaking point?

Paul McDonagh-Forde

This article concerns recent developments in Irish law on constitutional protections of information; specifically, information that is transmitted from, or originates in, the home. This is not a conventional article on Article 40.5’s protections of the dwelling, but is rather a specific critique of its capacity to have the role suggested by Hogan J in the Schrems case. Schrems was a case taken by an Austrian student, challenging Facebook’s privacy regime in the context of European law. Given Facebook’s use of Dublin as a European headquarters, the challenge was initiated in the Irish High Court. It will be argued that attaching constitutional protection to privacy in a digital media context is welcome and helpful, but there are fundamental weaknesses in using 40.5 in the manner suggested in Schrems.

Schrems itself was decided on a number of issues, and domestic law was very much secondary. Hogan J held that EU law went against Mr. Schrems, and therefore domestic law was not the primary issue. When considering the existing case-law stemming from Kennedy, the trial judge suggested that ‘private communication generated within the home’ directly engages Article 40.5. The examples given are ‘internet use’, ‘telephone calls’, and ‘private mail’, although it is unclear whether this list intends to be exhaustive. Arguing that direct interference with communication would be akin to life in the East Germany, the trial judge held obiter that such interference should be objectively justified ‘in the interests of the suppression of crime, national security…’ and that ‘any such interception was attended by appropriate safeguards’. This seems to suggest that a test of objective justification, perhaps of a Fortune-esque nature, is supported by the judge in this context. One of Hogan J’s main sources of inspiration was the modern-day German courts, in the Anti-Terrorism Case.

At Irish law, Hamilton P in Kennedy already enumerated a right to privacy that included a ban on unjustifiable interference with telephone calls. He held that there could be some circumstances where the ‘exigencies of the common good’ could necessitate interfering with this right. Much of Hogan J’s reasoning seems entirely compatible with this constitutional conception of privacy. The breaching party is already obliged to justify the interference, and the information is afforded comprehensive protection by the right to privacy, not being limited by the attachment to the dwelling. Furthermore, broader provisions (or at least, provisions that have recently been more broadly interpreted) such as the right of the person in Article 40.3 could be invoked, should a more textual solution be desired. David Kenny has argued that this developing area of law has the capacity to provide robust constitutional protections, and it could be argued that privacy is inherent in personhood. The invocation of 40.5 raises questions of inconsistency and logical difficulty, which I shall examine presently.

Attaching constitutional protection to communication ‘generated’ in the home raises the question of its status once it leaves the home. In a modern context, messages can be read on electronic devices in any location. Even if the Irish courts were to take the approach of Riley v California (discussed in more detail later) and provide constitutional protection to a mobile phone, thus requiring a warrant for search and seizure, this would not provide a complete solution. A message can be sent to another party, appearing instantaneously on their device. It would be difficult for Article 40.5 apply to this message by virtue of where it was generated, as the recipient might not reside in the dwelling in question at all. An expansion of this protection to cover the device of the recipient through their own dwelling would not fit with Hogan J’s reasoning, given that he conceives of the information as ‘originating’ in the home in question. Affording a 40.5 protection to the data purely based on its dwelling of origin seems unnecessarily strained, seeing as a privacy protection could be afforded to the messages generally, or to the device. A broader privacy guarantee, attached to the right of the person if necessary, could not be used in this context instead.

The protection of telephone calls, per Kennedy, is a better fit with 40.5. Phone tapping requires direct physical interference with the home, and/or with technology associated with, and attached to, the home. The information is acquired by virtue of the interference with the dwelling. Any further interference, such as putting a call on loudspeaker to a large group of people, could be covered by any number of existing laws surrounding privacy. Moreover, it could also be covered by existing constitutional protections of privacy, or protections through the right of the person. It might be argued that 40.5 could be used to protect information even in this loudspeaker scenario (given the call originates in the dwelling); this would, however, involve applying a dwelling-related protection to information emanating from another to the recipient’s device. This objection also applies (as I have said) to more modern forms of electronic communication. Using a provision that focuses on the dwelling to protect a device not owned by a resident, or not associated with that dwelling, seems disingenuous when a broader privacy provision could be used instead. The surveillance of the passing of information within the home, such as private conversations interfered with through bugging, could, of course, not be excluded from 40.5 using the same objection.

Article 13(1) of the German Basic Law affords a similar protection to that in 40.5, and is used as an example by Hogan J. The only reference to 13(1) in the Counter-Terrorism case is at paragraph 93, where it is mentioned in conjunction with a number of other specific provisions (such as the protection of private information). The use of Article 40.5 to moot a specific test based on interference with information originating in the home is a strained broadening of the Article, and is simultaneously a much more specific focus on the dwelling than in the German case. Protections of the dwelling could have a helpful role in direct interferences with electronic matter located therein; moving beyond this raises, once again, the objections already made.

Constitutional protection could be extended to specific devices by the courts, in light of modern technological advances. This is particularly true of the mobile phone, and the US Supreme Court has done just that in Riley v California. Roberts CJ held that a mobile phone was something that contained the ‘privacies of life’, and that a warrant was required to search one, lest the police get access to the equivalent of bundles of private documents in a house. This could have some interesting lessons for the Irish courts, however the analogy with the dwelling should not be taken as an equivalent comparison; to say that they are comparable and analogous is not to say that the solution should be the same. The objections already raised to using protections of the dwelling in an Irish context to mitigate rights in relation to devices such as smartphones would lead to messy, somewhat incoherent, and unnecessarily strained jurisprudence.

It may seem hyperbolic to focus on a single, specific case in order to launch such a determined critique. Article 40.5 could be used in conjunction with other provisions (as is done in the Anti-Terrorism case) to protect the home as a ‘place of repose from the cares of the world’ (per Hardiman J in O’Brien). There may well be cases where the information is of a quality that makes it inherently related to life within the dwelling. The fundamental issue of devices owned and possessed by other individuals, however, still stands. Should the protection amount to information originating in the home only while present there (information on a specific computer, etc), then this is no different to the existing physical protections of the dwelling in a search context, and of property. Should the protection amount to all information originating in the home, it raises the issue I have already elaborated on. It is difficult to envisage any scenario where an analogous link between the dwelling of another, and a device owned and operated by, or information possessed by, an individual that has no connection to that dwelling, should be made. This is made all the more compelling by the existence of suitable constitutional provisions elsewhere. To stretch the logic even further, applying 40.5 to any form of communication originating within the home could extend the protection even to semaphore or, indeed, smoke signals, sent from the balcony of a dwelling. The reasoning seems to, by its nature, suggest a potentially broad scope of application that would fit better with less specific parts of the Constitution. The courts would be better served by providing protections primarily based on privacy. Making use of protections of the dwelling would be better placed as an additional quiver to their legal bow, when they become directly relevant. Article 40.5 is not the most expedient, stand-alone cause of action in respect of information that merely originated in the home.

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