Prosecuting crimes often involves the practice of intrusive measures in the sphere of intimacy and privacy of individuals. This fact becomes even more complex when it touches our own personal communications on the Internet. Are Latin America’s procedural systems ready to face these challenges?

By J. Carlos Lara, Derechos Digitales.

It is normal for states to chase and prosecute crimes that affect our society or its functioning. This naturally requires obtaining information in order to know what is happening and taking the appropriate measures. However, this search for information may often require measures that affect the interests of people, or the gathering of data beyond authorized cases. These interests may be particularly affected in relation to spaces of intimacy or privacy, ie, criminal investigation may require the execution of intrusive measures.
Intrusive measures can be identified as those permitted in the context of a criminal investigation, which aim to delve into aspects and circumstances within the margins of the private sphere of the accused and of any relevant relationships, to help solve the cases. Thus, it is possible to break the protection of privacy, under certain rules or formalities which are established at a legal level. As an exception, there are also certain scenarios that warrant the implementation of intrusive measures without prior authorization, as in cases of in fraganti, under set legal requirements.

However, it is not very clear whether our national procedural systems are capable of providing any solutions for such variables which could potentially affect fundamental rights, or any other variants. Moreover, if there are such rules, their mere existence does not guarantee that the conditions for gathering information are in any way optimal for safeguarding fundamental rights.

In other words, a likely first question would base itself on the existence of some rules. If these do exist, then a second question would ask whether the rules provide a balanced framework for the  infringement of rights, with the intention of finding the truth.

In this effort, it would be worthy to focus the attention on measures relating specifically to the Internet. The reasons are more or less obvious: the more details of our lives that we share on the internet, the more evidence we leave of the things that we do and are involved in.

This may mean, for example, that plans are being made or information is being sent through email. But from such casual communication,  the identity of people or their involvement in criminal acts may be deduced. The content of communications, as well as data regarding time, date, participants and location seem particularly useful for clarifying criminal acts or circumstances. Since it involves personal information, which may include personal data, as well as private or intimate details, access to this would require some special attention. Are our justice systems ready to face these sort of challenges?

In principle, the answer is negative. While Latin American criminal procedure systems tend to establish mechanisms to ensure fundamental rights, such as privacy, the complexities associated with information technology makes it difficult to offer any guarantees.

For example, emails actually fulfill the same function as postal mail, but the procedural mechanisms for seizure may not operate in the same way. In several cases, such as in Argentina or Chile, either by express means or abiding to general rules, the gathering of emails is governed by the same norms as the seizure of postal mail, which means the confiscation of servers or entire units, with very few procedural safeguards for the rest of the information within the equipment.

In other cases, emails are considered as a form of private communication, comparable to telephone conversations, thus allowing a similar targeted surveillance intervention. However, it has a broader scope than in the case of telephony, including control mechanisms that are difficult to access.

In other aspects, the information concerning communications between individuals or their visits to web sites (ie, metadata), could also be under observation in a prosecution case and may not only affect personal information but the privacy of the holders of such data.

This is evident in the case of data retention laws of telephone or electronic communications. Thanks to these legal mechanisms, information related to data traffic between individuals, or individuals and businesses is stored. Although it could be argued that this collection of information is necessary or at least useful for criminal investigation, collecting all of that metadata necessarily involves tracking the actions of individuals. This not only affects your privacy, but also your freedoms, and even the guarantee of due process: monitoring the actions and movements of people, when there is no investigation under way is a violation of the presumption of innocence. In relation to this, the European Court of Justice declared that the EU Directive on data retention compromises human rights.

The future outlook in Latin America does not seem encouraging if we review the ongoing efforts. Data retention laws exist in countries like Chile and Colombia (and in Argentina, but by a decree of dubious validity), while in Paraguay there are talks about establishing a system of this nature. The resistance on behalf of civil society has been clear, however, the states of the region seem to persist in seeking their means of increasing their capacity for monitoring and control.

For all these reasons, it is necessary not only to put forward evidence on the state of the region, but also to raise awareness across the board regarding the risks of establishing rules for criminal prosecution without a framework for monitoring human rights. In the Internet age, this implies an even greater effort to prevent the invasion of privacy. Criminal investigations should not be carried out at the expense of human rights.

*This article is based on research by Derechos Digitales, “Privacy in the System of Criminal Prosecution in Chile” and “Privacy in the Chilean Legal System.”