On July 27th, while more than 30 million of Peruvians were celebrating the national holiday, the government enacted the Decree Law 1182, a precept which, on a practical level, turns all citizens into possible criminals who need to be watched.

By Carlos Guerrero Argote*

As we warned in Hiperderecho, the DL 1182 (which quickly became known as the “Stalker Law”) creates two very concrete situations assuming an unreasonable and massive affection of the fundamental rights. The first one allows the geolocation of devices connected on mobile networks without prior warrant and the second is the telecommunications data retention for three years.

Geolocation without control

Before the Stalker Law, the procedure to request the disclosure of the telecommunications secrecy with the purpose of criminal investigation was subject to the judge’s approval, who qualified the legality of the measure and detailed exactly the time and scope of it. As a result, we can say that the invasion of privacy was justified by strong evidence that the suspect had committed a crime established by an impartial third party.

Nonetheless, under the pretense of contemplating the amount of time this judicial control operation takes and how the police’s work becomes ineffective, the DL 1128 arranges a control after it. That is to say, whenever these three assumptions are met: a) the existence of flagrancy b) a crime punished with more than 4 years in prison and c) the access to the geolocation data is strictly necessary.

Meanwhile, the police will be able to “skip” the control, and yet they will have up to 72 hours before a judge decides the taken actions and can declare them valid or not. In practical matters, this means the invasion of privacy is no longer selective but total. The state has to protect us and in return they demand the knowledge of where we are at all times.

These assumptions, which could seem somewhat valid, bring up different problems. Perhaps the most evident is that neither the text of the law nor the memorandum provide the number of crimes that would stop being committed or the frequency in which the police ask for this information in order to solve their cases. In fact, the assumption of cause is simple: “We cannot (or we do not want) to explain why we need it but we are convinced that we need it”.

Data retention

If the real-time interception of geolocation data without judicial control was something questionable, in the best-case scenario, the Stalker Law would go one step forward. The new DL 1182 claims telecom providers not only retain the location but also the registers, length, frequency and other data from phone calls and internet navigation throughout Peru to be checked at any time. All the lines in that run through Peru, 24/7, over the course of 3 years.

Therefore, Peru was late to join a trend which is setting back all the democracies of the world. And not only ignoring verdicts like the ones from the European Court or the closest rejection the “Ley Pyraweb” in Paraguay had (they propose basically the same), but also at this point it does not even try to justify since the referred text is a true copy from a Spanish law and is even more scandalous because it plagiarizes entire sentences from an article made by an activist from the Fundación Karisma who ironically writes against the data retention existing in his country.

Public reaction and the Government’s response

As it could not have been otherwise, the Stalker Law was rejected from the beginning by different organizations, from the civil society, to the academy, to technical communities and it was even criticized by institutions such as the Public Ministry. There are three clear arguments that have been mentioned by the main critics of the law:

– The appeal of the procedures of the law go against the national and international jurisprudence about the subject, and even worse, they go against what is said in our Constitution where the judicial control is essential to disclose the secrecy of telecommunications and get data like geolocation.

– The use of these kinds of surveillance tools generates a lack of trust in part of the population due to the scandals of illegal interception, extortion to politicians and even the monitoring of members of the opposition that fill the authorities’ history of respect towards the privacy in communications.

– There is no accuracy in the law regarding the limits and security controls, so it does not end as a cure would end a disease. The text in this law is pretty ambiguous, it does not identify in a concrete way the ongoing situation it wants to repair, and the way it is now, not only helps to chase criminals but also could be used to arrest rally leaders and then penalize them using geolocation (which registers where you are, but not what you are doing).

The Government has been quite rigid about it. They not only adopted the decree on a holiday, denying the possibility of a prior debate, but also closed the door to any opposition despite the legitimate requests of many different civil society voices to assess and improve the law.

As a last resource, they have appealed to two completely wrong equations: One of them states that geolocation metadata is not part of the telecommunications confidence, hence getting it without a court order does not violate the Constitution. This is an irony if we consider the Constitutional Court has already determined that this is a violation. The second says that these kinds of laws are necessary to fight crime, but without explaining why this one particularly is appropriate and why it would be successful here when in other places where it already exists there is no meaningful change in the reduction of the crime.

Looking forward to building an alternative proposal, Hiperderecho has driven a campaign through the EFF platform to let the congressmen and congresswomen know that the law needs to be modified to fit its purpose, without recognizing the violation of innocent people’s privacy. After all, the Stalker Law is not any different from telling all Peruvians to tear down their walls, to get rid of their curtains, knock down their doors and start living under permanent scrutiny so they can prove they are doing nothing wrong. With this kind of law it seems we have to assume we all are guilty until our mobiles prove otherwise.

*Carlos Guerrero Argote is a lawyer and researcher of the Hiperderecho NGO

Image: Constanza Figueroa / Derechos Digitales