For several months we have been conducting a thorough investigation, which seeks to map the protection of privacy and personal data in Chile, which later will also include South America. As the relevant rules are being closely examined, together with the opinion of some players in the system, we will eventually know how to address regulatory issues and how to address them.

Por Juan Carlos lara

The need to improve the conditions for the protection of rights related to privacy has often been included in public discussions, whether it be in terms of privacy, the privacy of communication or the processing of personal data. In almost every instance we found a consecration of rights which, for one reason or another, turned out to be empty in face of the phenomena of widespread lack of observance. State devices that monitor citizens, corporations that profit from the unruly trade databases of people and penal prosecution entities that override privacy issues without any form of control, are the type of encumbrances which we have been reading about for a while.

Logically, this leads us to wonder about how we can guard ourselves from such a broad range of attacks on being free to control our very own lives. So far, the answers to these questions have proven useful and informative, raising some serious warnings. But likewise, it has shown us that the national systems often have major flaws that prevent the effective protection of privacy.

In Chile, this problem is evident just by looking at the constitutional regulation: the consecration of a right for the protection of privacy and inviolability of communication exists in such broad terms that it makes it seem as if all privacy issues could be solved through it, whereas in countless bodies of law, we find an abundance of rules, yet a comprehensive, consistent and equitable regulation is needed.

Another example is the absence of observance mechanisms for dealing with personal data (an outright exception in the region as they are not subject to constitutional protection), plus the need for a control and monitoring organism, and a lack of dissuasive sanctions, among other things. It seems that, unlike many countries in the region, Chile has plenty of rules, but lacks genuine rights.

Moreover, there are problems due to practices which border on illegality, including cases of companies that trade databases to send out unwanted commercial information, drones being used for air surveillance, and access to personal information, even in the absence of a warrant, at the mere request of the police.

How do we deal with a scenario which includes so many different forms of charges, in such important areas of each person’s life? How do we reach a point of equilibrium, if for every interest that is at stake there are countless other threats? In the area of privacy and its many facets, it is firstly necessary to become familiar with a map of the problem.

For the above reasons, a significant effort has been made throughout several months by Derechos Digitales NGO. On the one hand, through the comprehensive study of what the protection of these interests represents in Chile. On the other, a diagnosis of the situation through an analysis of this legislation in the field of penal prosecution, in order to know whether the institutional safeguards echo constitutional protection. Additionally, the actors of the multiple positions involved in penal prosecution were the subject of an inquiry to find out about their mode of interaction with the legislation, which apparently seems more based around intuition than actual knowledge.

From the closest inspection carried out so far, the findings show that the problems, both institutionally and in practice, are much greater than previously suspected. However, the purpose of the research is not to account for all the problems and rest on its diagnosis, on the contrary, the formation of competences for both civil society and government agents, as well as information on new legislative proposals and public policies which convert the respect for privacy into one of the essential pillars of their activity, are part of its objectives.

At a time when privacy seems to be at the center of global debate, Latin America has a great opportunity to stand out as a region where rights are actually respected. All of us are contributing for this to occur.