The advanced government surveillance systems manifest the excessive technological power of States and the fragility of our human rights before new information and communication technologies. Colombia recently adopted legal measures designed to authorize and organize mass communication surveillance on the Internet, putting at risk the human rights of its citizens.

By Amalia Toledo, Karisma Foundation.

It is undeniable that the Internet has served and serves to protect, promote and protect the most basic freedoms of human beings. At the same time, it has been and is also a space of infringement. Groups of people, individuals, businesses and governments have used and use this tool to improperly attacking human rights (HR). One only has to read the press to find the most recent U.S. government scandal on its system of mass surveillance of electronic communications. This reality confronts us with the need to become aware about our rights and the operation of the Internet. Only then will we be able to establish, manage, adjust and make informed decisions regarding the use of the Internet, and to require our governments to adopt legal guarantees, check-and-balance mechanisms and greater transparency when adopting surveillance regulations and technologies.

Prior to evaluating the new Colombian regulations on surveillance activities in the Internet, let’s review the international framework of HR, most notably the rights to privacy and free expression.

Privacy can be defined as the right by which individuals have the power to exclude others of their personal life (i.e. thoughts, emotions, and personal biographical data, image). It also implies the power to determine to what extent these personal life dimensions can be lawfully communicated to others. But this right is not absolute. The State has the legitimate power to limit it in accordance with international standards of HR. That is, limitations and restrictions must be always necessary, legitimate and proportionate.

The right to privacy is of great importance, as it is the basis of other rights. Thus, privacy is required to create areas that allow people to think and build ideas and relationships. The right to freedom of expression, for example, needs of privacy to ensure its full enjoyment.

On the other hand, freedom of expression is the right to have an informed citizenry. Moreover, and equally important, it is vital to ensure accountability of public and private sectors. Broad access to information and the freedom to create and communicate ideas are fundamental for the development and advancement of knowledge, economic opportunity and human potential. The exercise of this right is subjected to limitations and restrictions provided by law and necessary: “(a) For the respect of the rights or reputations of others, [or] (b) For the protection of national security or of public order, or of public health or morals” (Art. 19(3)).

The International Covenant on Civil and Political Rights monitoring body, in its General Comment No. 27 of 1999, established the elements for permissible limitations test of the rights to privacy and free speech, among others. In this sense, it is essential that any restriction must: (a) be provided by law; (b) not compromise the essence of the right in question; (c) be necessary; (d) limit the discretion of the implementing body; (e) pursue legitimate purposes and be necessary to achieve them; (f) respect the principle of proportionality, be adequate in relation to its protective function, be the least intrusive instrument to achieve the expected result and also be proportionate to the interest that it wants to protect; and (g) be consistent with the other rights in the Covenant. Therefore, this is the international legal standard to assess the legality of a measure restricting HR.

In Colombia, the electronic communication surveillance regulation is contained in Law No. 1621 of 2013 and Decree 1704 of 2012. The first one is on the limits of intelligence and counterintelligence activities, while the decree regulates obligation of telecommunication and Internet service providers to deliver their subscriber bases to criminal investigation authorities. Although there is nothing specific on this, it emerges from their provisions that the same surveillance technology will be used for both intelligence activities and criminal proceedings. The electronic communication interception activities, according to these measures, are justified on the State’s duty to safeguard national security and defense. However, the two legal texts do not comprise any definition on these concepts. Such lack of precision makes it difficult to assess the extent to which a surveillance activity is protected by law, putting at risk the rights to privacy and free expression of all citizens.

Moreover, these measures assign excessive power to state agencies on interception of communications, seriously undermining the right to privacy and freedom of expression. No doubt that is a legitimate state aim safeguarding national security and defense. However, the means established to achieve these objectives are in clear contravention of the interests seeking to protect. In addition, the regulations are rather lax when specifying what is electromagnetic spectrum monitoring, what kind of technology will be used for interception of electronic communications, which authorities are competent for managing the surveillance system, what control mechanisms –judicial, independent and/or public– will ensure no unduly use of the system, among others.

The information to be intercepted -technical information or metadata* – can be deeply revealing. And Law 1621 and Decree 1704 do not provide sufficient guarantees to ensure that activities regulated do not cross the boundaries of legality. These measures suffer from vagueness, weakness and almost complete absence of effective controls and limits. Therefore, they do not meet the international standards of HR.

It is now up to the citizens to exercise their right to freedom of expression, asking for accountability and reminding the government that there is no carte blanche to restrict our rights. It is time to act and defend us against undue government interference with our rights.

*In a strict sence, it is data that describes other data. In a telephone or electronic communication, it can include the names of the persons involved, technical characteristics of the medium used, the location of persons that call/send and answer/receive, call duration, etc.

Amalia Toledo, Karisma Foundation.
Twitter: @amalia_toledo