By Emiliano Villa and Ramiro Álvarez Ugarte

A claim filed by the Association for Civil Rights(Asociación por los Derechos Civiles, ADC) sought to prevent photos of Argentineans from falling into the hands of third parties. Although the claim is ongoing, initial security failures and leaks have already occurred.

During recent legislative elections, the National Electoral Commission (Cámara Nacional Electoral) –i.e. Argentina’s top authority on electoral issues— made electoral rolls available to voters via www.padron.gob.ar, which was aimed at giving voters an online platform for viewing where they had to go to vote. When voters entered their identification numbers, gender, district of residence and CAPTCHA[1] script for validating their queries, the system displayed their electoral data (i.e. name and type of ID, last and first name(s), electoral district and circuit) as well as where they were supposed to vote in the upcoming elections.

What was new this time was that –in many cases– the system also displayed a photograph of the voter obtained by the National Registry of Persons (Registro Nacional de las Personas, Renaper) for the purpose of confectioning National Identification Cards[2] . Renaper handed over these images to the National Electoral Commission thanks to a norm that broadened the scope of the information contained in the electoral roll. According to reports by official sources, this new databank contains photographs of 9,338,672 voters, i.e. 30.59% of all voters recorded in the final national electoral roll[3]. That database had to be uploaded to the internet for the system to operate online; posing, in turn, a threat to the safety of images of every Argentinean.

Given this scenario, ADC filed a collective writ of habeas data[4] requesting that all photographs of Argentinean citizens be removed from the Electoral Roll and not displayed upon viewing the roll on the internet.

The main reasons for this claim were the following.

(a) A harmonious interpretation of Law No. 25,326 regulating the Protection of Personal Data in Argentina deems images as sensitive information and, thus, grants them extremely careful treatment. Data which “may reveal race, ethnicity, or religion,”among other criteria, is defined as sensitive under the above law. There is no doubt that an image of a person’s face can generate a sort of social profiling that could potentially give way to the creation of databases with unlawful or discriminatory purposes.

(b) As was advanced above, the goal of obtaining images arises from a power that was granted by the State when new national IDs were confected. However, the aim of identification is inconsistent with those of the Electoral Commission when including such images in the online electoral roll. Upon filing for new IDs, individuals were not informed that their image could be used for any purpose other than confectioning ID cards, thus violating the Protection of Personal Data Act.

(c) Another key element in this issue is that of proportionality. The collection, treatment, and storage of photographs of citizens constitute an evident threat to the right to privacy. Since privacy is a constitutional right, this threat must be subjected to a proportionality test to determine whether or not it is lawful. If the electoral roll has been operating smoothly with just minimal data about voters, then the State must explain and justify why it was necessary to incorporate personal data that could affect individual privacy. At ADC, we believe that Congress had insufficient reasons for justifying this change.

Based on the above principles of finality and proportionality, which are paramount to the development of personal data protection schemes, we should ask ourselves the following questions:

Does the image contained in the electoral roll serve identification purposes? The answer is no. The decision of the National Electoral Commission that regulates the incorporation of images into the electoral roll and the National Electoral Code state that if the image in the electoral roll is inconsistent with the physical aspect of the voter or if there is no image of the voter available at all, he or she cannot be stopped from casting his or her vote.

Does it serve informational purposes? The answer is no. First, the database does not include all voters (only ~30% of voters). Therefore, a significant amount of votersis excluded. Second, the images are not contained in the hardcopies of the electoral rolls that are available to the public (the only people who can see rolls with images are polling station presidents). Thus, the aim is not informational. Instead, the only aim is to inform about where individuals must vote.

A final issue is that of images being freely available in an open access and massive medium such as the internet. ADC denounced this issue as urgent and expressly filed for a precautionary measure[5] requesting that these images be eliminated from the database linked to www.padron.gob.ar because the site’s security measures were weak and involved universal yielding of data that included basic information to third parties. In fact, anyone with access to a phonebook who can look up the name of a voter can sign in to private unlimited access sites like www.buscardatos.com[6] and obtain necessary information for accessing the online electoral roll and gathering images. Among countless unlawful activities, these images can serve the purpose of forging documents, facilitating extortive kidnappings, cross-referencing banking information, and opening a very dangerous door.

The threats denounced by ADC have not been addressed quickly enough. In fact, in late October a 16 year-old teen discovered basic glitches in the database linked to www.padron.gob.ar which could –theoretically– enable the development of a code for automatically accessing the database and downloading the information contained therein. On November 3, that risk materialized when an anonymous developer published the site jsfiddle.net, which was a version of the code in question that automatically downloaded the images of hundreds of citizens. According to a follow-up study conducted by ADC, this code made it possible to access the photographs of 5.9000 individuals. The code exposed the system’s weakness and the carelessness with which the State treats our personal data. It also revealed the timeliness of the claim submitted by ADC for protecting the rights of Argentineans and the urgency of the precautionary measure for which –to date– a judicial decision is still pending.

Conclusion

The collective writ of habeas data filed by ADC was an ideal opportunity for questioning two aspects of the public policies that have a direct impact on the right to privacy in Argentina. On the one hand, the way in which the State treats the personal data of citizens, with few –if not no– guarantees of security and control. This is a State which –as evidenced by the SIBIOS system[7] — does not hesitate to create public policies that demand the submission of personal data from citizens for vague purposes. In addition, the writ also constitutes an opportunity for questioning the purpose of such policies. Why is the State adopting policies that directly affect the right to privacy without previously justifying their adequacy, lawfulness and proportionality with regards to their stated aims? An assessment of this sort was absent in this as well as other policies that invade the privacy of all citizens; and this is routine in many countries throughout the world. The lawsuit initiated by ADC marks a unique opportunity to begin to challenge the currently unquestioned logic behind these State actions.

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[1] CAPTCHA: Completely Automated Public Turing test to tell Computers and Humans Apart.
[2] National Identification Cards contain basic data on every citizen and resident of Argentina and have been in force since 1968.
[3] Center for Judicial Information (Centro de Información Judicial): “Más de 9 millones de electores tienen su fotografía en los padrones” [Electoral Rolls Contain Photos of Over 9 MillionVoters], 7/13/2013, naming the National Electoral Commission as its source. Available online at:
http://www.cij.gov.ar/nota11818Msde9millonesdeelectorestienensufotografaenlospadrones.html
[4] Translator’s Note: Constitutional remedy designed to protect, among other things, the image, privacy, freedom of information, and information of self-determination of individuals.
[5] Translator’s Note: Under Argentinean Law these measures are similar to injunctions under Common Law.
[6] A private site that enables finding people through their personal data: ID, name, last name, address or phone number.
[7] SIBIOS is a new, centralized, biometric, federal identification system with national coverable and limited scope within the Ministry of Security that allows State security agencies to “cross-reference” data on every citizen through biometric and patronymic data as well as other records contained in public databases “for the purpose of optimizing the scientific investigation of crimes and to support preventive security functions.”

Translated by Paula Arturo