Under the advancement of technology, the key question in our countries is to ask how unchecked surveillance practices continue affecting the right to privacy of our populations.

 

By Claudio Ruiz*, NGO Derechos Digitales.

Edward Snowden’s revelations have sparked a global scandal, as they have exposed how digital technology, which until recently has inspired countless utopias, has a very murky and dark side. It facilitates the job of states to monitor the world population in cooperation with private corporations. But in this global context, what is the situation of Latin America and why should it receive any particular attention? Originally, privacy was understood as the right to remain alone, originally it was an idea from an old article by Louis Brandeis and Samuel Warren, who have been very influential in setting up the right to privacy in the North American system.

In Latin America, the evolution of the concept of privacy has always had a much wider connotation, with constitutional recognition in most of the countries around the region. Additionally, the idea of privacy has evolved according to the evolution of technologies, which have increasingly defined its limits due to the automatic processing of our personal data. The development of information technology in the midtwentieth century has created powerful tools for treating and processing information, allowing the field of medicine to obtain extra health data from large segments of the population and control pandemics. However, both the state and private sectors are responsible for setting trends and behavioral profiles without the consent of the people.

Privacy, therefore, can no longer be reduced to the right of private space, but as one where everyone can take an active part in controlling the existing information of each individual; a legal manifestation of respect and protection which is guaranteed to each and every person, protecting dignity and human freedom, by recognizing within the holder, a power of control over their personal autonomy. The Inter-American system has not been immune to this construction. Without going any further, the 2013 Report of the Special Rapporteur for Freedom of Expression expresses the richness of the concept, indicating that the right to privacy was referring to that external sphere which is beyond the arbitrary interferences of the state and third parties.

In other words, it is the right of self-governing, i.e., of developing personal autonomy and individual projects, of secrecy of data and information of reserved spaces, and of the right to one’s own image.  Although there is a long way to go, particularly due to the aggressive advance of digital technologies and their impacts on human rights systems, this categorization is a good starting point for building a sophisticated doctrine for the protection of these rights, under the wing of the tradition of the American system.

The rapid evolution of digital technologies has exposed these aspects of the right to privacy to permanent threats from around the world. Worryingly, Latin America is not just an exception to this trend, but as on other occasions, it has even become a field for exploring new forms of surveillance. Thus, the 2014 report of the High Commissioner for Human Rights, Navi Pillay, deals specifically with the subject of privacy in the digital age, with a special focus on the problems arising from state surveillance and the lack of transparency: “The complexity of the challenges for the right to privacy in a digital age, of rapid and dramatic changes, will require constant scrutiny and dialogue between all key sectors, including governments, civil society, scientific and technical experts, the business sector, academics and human rights specialists”.

Moreover, at international level the ruling of the European Court of Justice is particularly important, as it determined that the data retention rules of Internet service providers are neither necessary nor proportionate, i.e. they do not meet the standards of respect for fundamental rights. Despite this decision, which has caused a profound reflection in Europe regarding such practices, in Latin America the data retention rules are generally an exception instead of a rule. From the perspective of the Inter-American countries of the region, they should advance in harmonizing these practices in light of the human rights criteria.

Unfortunately, the following are not exceptions, but different practices that can be seen throughout Latin America:

– In Mexico, the last amendment to the Telecommunications Act included explicit policies regarding the geo-location of cell phones without requiring court order.
– In Colombia, it has been revealed that a number of communication interceptions have been made under the peace process, without any judicial guarantees.
– In Argentina, through the Federal Biometric Identification System for Safety (SIBIOS), what is probably considered the most aggressive surveillance system state in the region is being introduced, based on biometric identification.
– In Brazil, the emergence of protests against the organizing of the World Cup, gave way to a technical reinforcement of the police and intelligence services in order to deal with them. This example is particularly important given that it shows the connection between the protection of personal information, or at least of due process and transparency, with other fundamental rights such as the right to protest. Somehow, the exercise of the right to protest in the XXI century is closely linked to the protection of privacy on the Internet.

The development of digital technologies has brought a new opportunity for the growth of surveillance practices in Latin America. Despite having suffered decades of totalitarian state repression, which included a strong monitoring component in the form of agents, so far it does not seem like a simple task for our societies to make the connection between this reality and the exercise of human rights through digital technologies. Edward Snowden’s revelations, which also cover the close cooperation between security agencies and technology companies, should be a wake up call for the construction of a normative model that respects online human rights. Additional efforts are expected from public policies, but more so an effort to systematize practices and local realities in order to understand these dynamics and provide consistent and guaranteeing solutions.

*Claudio Ruiz is the CEO of NGO Derechos Digitales.