This is a guest post from Luis Fernando Garcia, Red en Defensa de los Derechos Digitales (R3D). If you have comments on this post, you can contact R3D on Twitter.
Between 15th-19th of September, in the week leading up the first year anniversary of the 13 Necessary and Proportionate Principles, EFF, Red En Defensa por los Derechos Digitales and the coalition behind the 13 Principles will be conducting a Week of Action explaining some of the key guiding principles for surveillance law reform. Every day, we'll take on a different part of the principles, exploring what’s at stake and what we need to do to bring intelligence agencies and the police back under the rule of law. https://necessaryandproportionate.org/anniversary. Let's send a message to Member States at the United Nations and wherever else folks are tackling surveillance law reform: surveillance law can no longer ignore our human rights. Follow our discussion on twitter with the hashtag: #privacyisarightYou can read the complete set of posts at:
In recent years, especially after the Snowden revelations, a legal debate on metadata has been sparked in the United States.1 In essence, what legal scholars and US government officials have been arguing is, first, whether communications metadata deserves the same protection as the content of communications, and second, whether the collection of metadata alone constitutes an interference with the right to privacy or whether the analysis of metadata would be necessary to trigger the privacy question.
Many seem to observe this debate as if it would forever determine the scope and limits of the right to privacy around the world. However, this view ignores that these questions have already been raised in Europe2 and other parts of the world. For example, in Latin America, constitutional and human rights courts have produced interesting decisions on the matter.
On the question of whether communications metadata is protected by the right to privacy, the Inter-American Court of Human Rights decided in Escher v. Brasil3 that both content and metadata are protected:
“[The right to privacy] applies to telephone conversations irrespective of their content and can even include both the technical operations designed to record this content by taping it and listening to it, or any other element of the communication process; for example, the destination or origin of the calls that are made, the identity of the speakers, the frequency, time and duration of the calls, aspects that can be verified without the need to record the content of the call by taping the conversation. In brief, the protection of privacy is manifested in the right that individuals other than those conversing may not illegally obtain information on the content of the telephone conversations or other aspects inherent in the communication process, such as those mentioned.”
In a similar way, the Supreme Court of Mexico decided that police accessing cellphone data of a detained person without a warrant violates the right to the privacy of communications.4 The Mexican Supreme Court concluded that the cellphone data that is protected under this decision includes metadata:
“The object of the constitutional protection of the right to the inviolability of private communications […] does not only make reference to the communication process, but also the data that identifies the communication. In order to ensure the privacy of any private communication, it is necessary that the external communications data is also protected. This is because, while it is true that the data does not refer to the content of communications, it is also true that in many occasions [metadata] offers information about the circumstances in which the communication takes place, affecting directly or indirectly, the privacy of the communicants.”
The Supreme Court of Mexico also decided that the sole collection of data constitutes an interference with the right to privacy:
“The violation to the right [to privacy] is consummated in the moment of the hearing, recording, retaining, reading or registering -without the consent of the communicants or a judicial warrant-, of an external communication.”
This way, for the Supreme Court of Mexico, and others like the Supreme Court of Argentina5, the sole collection of metadata constitutes an interference that needs to comply with the principles of legality, necessity, and proportionality.
These legal precedents do not mean that Latin America is some sort of privacy haven. In fact, despite these precedents, Mexico just approved a new Telecommunications Law mandating the retention of data of all users and expands access powers to a broad range of authorities without requiring a warrant or any other safeguard.
Similarly, the largely hailed Marco Civil of Brazil includes provisions mandating data retention of a broad range of user information. Other threats come from outside the region, but in the same way, these legal precedents have done little to stop the NSA from illegally collecting all of the communications metadata of Mexico, as it has been recently revealed.6
Notwithstanding, from a legal point of view, it seems incontrovertible that metadata is protected by the right to privacy as much as the content of communications, and that the collection of such metadata needs to comply with the principles of legality, legitimate aim, necessity, proportionality, among others.
While the debate in the US is important given the pervasiveness of NSA surveillance, it is also important to recognize the opportunities some regions have to further develop electronic privacy standards in the light of recognized human rights law and the influence these regions should have in the global debates on privacy.
In the same way, Latin American countries should stop the trend of importing legal standards that are incompatible with its legal tradition and with the Inter-American human rights law that applies here. We should reject this sort of legal colonialism that has attached the import of billions of dollars worth of surveillance equipment, software and business models from which U.S. and European companies benefit so much.
The threat is not only the financial bankruptcy of Latin American institutions, but the bankruptcy of any regional democratic aspirations.
- 1. See for example. Orin Kerr. Metadata, the NSA, and the Fourth Amendment: A Constitutional Analysis of Collecting and Querying Call Records Databases. The Volokh Conspiracy; Laura K. Donahue. NSA surveillance may be legal – but it is unconstitutional. Washington Post; Randy E. Barnett. The NSA’s Surveillance is Unconstitutional. The Wall Street Journal.
- 2. Article 19 and Electronic Frontier Foundation, Analysis and Background Materials of the 13 Necessary and Proportionate Principles: https://en.necessaryandproportionate.org/LegalAnalysis/protected-information
- 3. Inter-American Court of Human Rights. Case of Escher v. Brasil. Preliminary Objections, Merits, Reparations and Costs. Judgement of 6 July 2009. Series C No. 200, para. 114.
- 4. Supreme Court of Mexico. 1st Chamber. Contradicción de Tesis 194/2012. Judgement of 10 October 2012.
- 5. Supreme Court of Argentina. Halabi Ernesto v. PEN Ley 28.873 s/amparo ley 16.986. Judgement of 24 February 2009.
- 6. The Intercept. Data Pirates of the Caribbean: The NSA is recording every cellphone call in The Bahamas. May 19 2014.