This post is part of the series “Unblinking Eyes: The State of Communications Surveillance in Latin America,” a collaborative project conducted with digital rights partners in Latin America, which documents and analyzes surveillance laws and practices in twelve countries: Argentina, Brazil, Chile, Colombia, El Salvador, Guatemala, Honduras, Peru, Mexico, Nicaragua, Paraguay, and Uruguay. In addition to the individual country reports, EFF produced a comparative legal analysis of the surveillance laws in those twelve countries, as well as a regional legal analysis of the 13 Necessary and Proportionate Principles written with Derechos Digitales, and an interactive map that summarizes our findings.
In 2004, when Argentinean lawyer Alberto Nisman was appointed by then President Nestor Kirchner to investigate the deadliest bombing in Argentina's history, few suspected that Nisman himself would become a fatality. The story of Alberto Nisman reflects the shadier parts of modern Argentina, including a still-mysterious use of digital surveillance against the rule of law.
Nisman was in charge of investigating the 1994 terrorist attack in Buenos Aires that targeted a Jewish Center, the Asociación Mutual Israelita Argentina (AMIA), killing 85 people. Two years after being appointed lead prosecutor, Nisman publicly accused Iran of directing the attack. Nisman eventually indicted seven Iranian government officials. With five international arrest warrants secured, the Argentinean government publicly urged Iran to extradite the suspects. The government of Iran refused.
Over the years, the case left the two countries at an impasse. Nisman forged ahead. His investigation was largely supported by Cristina Fernández de Kirchner who became Argentina's president after her husband stepped down in 2007. That is until rumors of closed-door negotiations between her and the Iranian government led Nisman to accuse President Fernández of making a secret deal between Argentina and Iran that would cover up any involvement in the bombing.
On January 18, 2015, the evening before Nisman was scheduled testify in Congress against the president and her foreign minister, he was found dead in his home.
An investigation subsequently conducted by security expert Morgan Marquis-Boire for The Intercept, indicated that Nisman had downloaded malware on his cellphone shortly before his death. Marquis-Boire explains that the software was hidden in a PDF marked “confidential,” and was intended to infect Nisman's Windows computer. Because Nisman opened the file on his Android phone, the spyware was not properly deployed. No one knows whether Nisman ultimately opened the file on his primary computer and infected it with spyware, but Marquis-Boire is confident that this malware attack was not an isolated event. Whoever was behind Nisam's final spyware appeared to use similar surveillance tools on other subjects, including the Argentine journalist, Jorge Lanata. Attribution of spyware is difficult, but Marquis-Boire believes there are strong indications that a government actor was behind these attacks.
Argentina has a long history of government secrecy and surveillance. One of the country's biggest surveillance scandals, unveiled during Cristina Fernández de Kirchner’s presidency, was the uncovering of Project X—a national police database that contained intelligence information on union leaders and members of the opposition, collected without a warrant. Project X clearly violated the country's national intelligence law and the law on personal data protection. Illegal wiretapping is not unknown in the country—the current president Mauricio Macri was under investigation for five years for his alleged participation in one such case. Although acquitted in December 2015, Macri has blurred the separation of powers by nominating a close friend as chief of the federal intelligence agency (AFI), and a party official with close ties to the intelligence community as deputy director. Argentina civil society has harshly criticized the nominees for their lack of suitability, however the Senate confirmed their appointments in August, 2016—a signal which may suggest the intelligence agencies are becoming less autonomous and reverting back to old practices.
These known reports of unchecked surveillance prompted EFF, along with our partners in Argentina at the Center for Studies on Freedom of Expression and Access to Information (CELE), Verónica Ferrari and Daniela Schnidrig, to write “State Communications Surveillance and the Protection of Fundamental Rights in Argentina,” a report that analyzes surveillance law in Argentina and provides recommendations. This report is part of the larger project “Unblinking Eyes: The State of Communications Surveillance in Latin America.” Here are some of its main findings:
Surveillance in Argentina Today
Argentina has ratified several human rights treaties that protect the right to privacy, such as the American Convention on Human Rights (ACHR). All the treaties that Argentina has ratified are binding and applicable in domestic law.
However, there is a lack of clarity in the privacy safeguards that Argentina's laws provide. The country's legal framework uses broad definitions in its legal provisions, and its intelligence framework allows for significant exceptions to constitutional privacy protections in “states of emergency,” (a phrase that is not adequately defined).
There are no legal obligations to submit transparency reports on communications interceptions for criminal matters in Argentina. However, intelligence agencies must submit annual reports on their activities to the Bicameral Commission on the Supervision of Intelligence Bodies and their Activities. They are confidential.
In September 2016, the Argentinian House of Representatives adopted the Access to Public Information Act. The new law allows Argentinians to request information from the General Prosecutor and any judge of the Judicial branch. The law contains national security exceptions; information will not be provided in circumstances where a criminal investigation could be jeopardized.
On User Notification
There is no legal obligation compelling companies or the state to notify a person when they have been the subject of surveillance. There’s a chance a person may learn they have been surveilled if the information gathered on them is used as evidence in a criminal procedure. But there is no obligation requiring public officials to disclose where they obtained such evidence. However, citizens do have the right to request access to the information that has been gathered on them by intelligence agencies.1
On Public Oversight
The Bicameral Commission on the Oversight of Intelligence Bodies and Activities is the country's legislative control mechanism. By law, it oversees and controls the activities of the National Intelligence System, Argentina's intelligence service, to ensure it complies with legal and constitutional regulations. The Commission should also weigh in on any legislation that concerns intelligence activities. However, the overall effectiveness of the Commission is greatly undermined by several factors.
- The Executive branch decides what information the Commission may access. Because the law imposes a general restriction on information concerning intelligence and counterintelligence activities, the Commission must receive authorization from the President or an appointed official in order to access any of this type of information.
- The Commission largely operates in secret. Civil society groups have tried requesting information about the operational activities of the Bicameral Commission, but have received no response.2
- The Commission must submit an annual report on the operational effectiveness of the National Intelligence System to the National Executive and the National Congress. The report, however, is confidential which makes it impossible for the general public to verify its accuracy.
The Asociación por los Derechos Civiles (ADC), a civil liberties NGO in Argentina, concluded that the Bicameral Commission is shrouded in such secrecy that it is impossible to assess its operation. In fact, testimony gathered during the investigation surrounding the death of Alberto Nisman suggests that the Commission is not operating at all. Veronica Ferrari, former Internet policy and human rights researcher and coordinator at the Center for Studies on Freedom of Expression and Access to Information (CELE) states,
The [t]radition of secrecy around intelligence in Argentina should be reversed. It's the government's prerogative to conduct intelligence, but the effective implementation of public oversight mechanisms, such as the Bicameral Commission, is essential to ensuring that human rights are not affected.
Daniela Schnidrig, former researcher at Center for Studies on Freedom of Expression and Access to Information (CELE), and a current staffer at Global Partners Digital adds,
In the upcoming months and years ahead, President Macri should focus his attention on developing robust transparency and accountability mechanisms to ensure that any surveillance of communications is conducted in a manner that respects human rights standards.
We’ve seen the consequences of unchecked governments that operate in secret. Politicians and judges in Argentina must incorporate better transparency measures and oversight mechanisms into their legislation in order to avoid any future abuses of power, internal corruption, and human rights violations on their people.
- 1. Supreme Court of Argentina. Ganora s/ hábeas corpus. Decision of September 16, 1999.
- 2. Ramiro Álvarez Ugarte and Emiliano Villa. Who is Watching the Watchers? Privacy International, Asociación por los Derechos Civiles – ADC. https://www.privacyinternational.org/sites/default/files/Who's%20Watching%20the%20Watchers_0.pdf