Human rights as a bargaining chip: the case of #LeyTelecom

by Digital Rights LAC on July 30, 2014


The recent approval of a new Telecommunications Law in Mexico uncovers an outrageous reality where the political process behind the transactions have converted human rights into a bargaining chip.

Francisco Vera, NGO Derechos Digitales.

After an exhausting and prolonged battle by human rights activists from Mexican civil society, the draft of the Telecommunications Law of that country was finally passed and published in the Official Gazette and is ready to come into force.

The concerns regarding this law are amply justified. While one of its initial hazards, related to rules affecting the principle of net neutrality, could have been solved, the other provisions which seriously impact the human rights of those living in Mexico have remained unchanged. We are specifically referring to those that are upheld in the name of public safety, such as the disproportionate capacity to control areas and populations, giving a “competent authority” the power to order the suspension of telephone services arbitrarily, in order to “prevent crimes from being commited”. This measure is completely unjustified and contrary to the right of freedom of expression, information and communication.

In fact, after the law was passed, the Human Rights Commission of the Federal District (CDHDF) stated that this was not only a law concern, it was also worrying for providing real-time geolocations and the broad and disproportionate obligation for the telecommunication companies to retain the data of their users.

However, beyond the specific problem areas of the Telecommunications Law, there is a bitter feeling about the political processes underlying these decisions. First, because of the low participation and transparency of the project, and second, its general tone and the concepts of public interest and human rights that appear within it.

A major reason for this sentiment stems from the disastrous idea that human rights are somehow negotiable in the name of market efficiency, social inclusion, digital penetration or, like in this case, an overloaded notion of public safety, which does not even provide real security for citizens. Under this approach, if a bill sacrifices some rights, it will not be a problem as Human Rights defenders will appear, along with other relevant actors, and provide all the relevant dots and wording to make it a “settled issue”.

However, deciding on respect for human rights, whether it be on the Internet or on another platform or place, does not equate to defining a simple public policy nor a subsidy for a particular industry, neither does it compete in importance with innovation or the market. Respect for human rights is an essential part of a democratic system and the rule of law; they guarantee all of our minimum rights as human beings, and they serve as the foundation for us to grow and develop in a society where we can enjoy other rights.

In fact, in most Western constitutions respect for these rights is not only recognized as a right, but also as a limitation on state power and that of other private actors, it is considered an essential duty, not a power for negotiating or making deals. It is also applies in the case of the Mexican Constitution, which clearly and unequivocally defines this point in its first article:

Article 1, first paragraph: In the United States of Mexico all persons shall enjoy the rights recognized by the Constitution and the international treaties which the Mexican State has subscribed to, including guarantees for their protection, whose exercise may not be restricted or suspended, except in the cases and conditions that are established by this Constitution.

However, after reading the new Telecommunications Law and observing other behaviors of the Mexican government (like the censorship of the 1dmx website), it is clear to see that its focus is not on these matters. In the recently passed law, it is easy to note that the language is designed from the powers of a governing body, from the obligation to cooperate with law enforcement or from the exceptions that make some rules become useless. In sum, from the need to limit human rights, when it is they who should limit power. This is clear in the wording of Articles 189 and 190 of the new law, which merely refers to the needs of the government, without any reference to the human rights that are being affected.

It is true that politics is based on negotiating and discussing various positions that can lead to results that leave everyone satisfied. But when the mechanisms and the language for designing public policy stem from the needs of a government or certain private actors, instead of focusing on human rights and public interest, the base of these deliberations and/or trading processes are biased and poorly designed.

Unfortunately, in this scenario, the role of civil society will be one of putting out fires and fixing bugs, rather than allowing our rights to flourish and develop in society.

Francisco Vera is a lawyer member of Derechos Digitales NGO.