Extreme mandatory data retention law overturned in the face of public scrutiny


Fundacion Via Libre



The Surveillance Practice: 

(Published December 2012) Laws mandating the storage of Internet users’ traffic data have stood out for years as a threat to privacy rights in the digital realm. While the European Union’s highly controversial Data Retention Directive required EU member states to pass laws requiring Internet service providers (ISPs) to log communications data for up to two years, an even more extreme proposal surfaced in Argentina in 2005. Then-President Nestor Kirchner, who has since passed away, issued a decree amending the National Telecommunications Law of 2003. A new data retention provision in the legislation compelled all telecommunications companies and ISPs to record, index, and store traffic data for a 10-year period. This information would be provided to the Argentinean Judicial Branch and the Attorney General's Office upon request.

The invasion of privacy that would have resulted from such a regulation was unacceptable to Fundacion Via Libre, a digital rights organization based in Córdoba, Argentina. Aside from the privacy implications of making a decades’ worth of traffic data available to law enforcement upon request, the proposal created major cost burdens for ISPs.

Despite the fact that there are few organizations tackling issues of digital civil liberties in Argentina, this grassroots organization was able to educate the media on the significant privacy implications of this proposal. Once the story broke, the Argentinian government had a major public backlash on its hands. The legislation was ultimately overturned.

The Campaign: 

Beatriz Busaniche, a member of Fundacion Via Libre, got the word out to reporters about why the proposal signified a threat to the privacy rights of Argentinians. At first, she was uncertain whether the message was getting through. “Almost no one paid attention – they didn’t understand,” she recalled. But she did receive a phone call from one journalist who asked her to explain the issue. Since the journalist had little technical expertise, Busaniche stayed on the phone with her for two full hours. She also connected the journalist with other experts in Latin America, including EFF’s own International Rights Director Katitza Rodriguez, who lived in Peru at the time. Rodriguez explained the problems with the European Data Retention Draft Directive, which was later adopted in 2006.

“After that, nothing happened for almost one month,” Busaniche said – and so she did not feel optimistic that the issue would be picked up in the press.

Then, early one Sunday morning, Busaniche’s phone started ringing and ringing. “It was journalists from TV channels – main TV channels – asking me what was happening,” she said. That’s the moment she learned that her interview had been featured in a prominent front-page story in Pagina 12, a Buenos Aires-based publication. Splashed across the top was the title, “Hay Un Espia En Mi PC,” or There is a Spy in my PC in English.

“It had such a strong impact,” Busaniche said. The initial story and the media coverage that ensued generated widespread public controversy. Within a week, President Kirchner stated publicly that the mandatory data retention decree had been a mistake.

Three years later, in 2008, the Supreme Court in Argentina officially killed the data retention regulation with a finding that it was unconstitutional. The data retention legislation was annulled due to lack of precision in its wording, and the court called the legislation a "drastic interference with the private sphere of the individual."

The Strategy: 

In this case, the strategy employed by Fundacion Via Libre was to go to the press. Since the organization is well known for its expertise in the area of digital rights, journalists frequently contact the organization for quotes and insight. This is the result of a successful overall media strategy. As Busaniche notes, activists should take a number of factors into consideration before they start making press calls.

“The best thing you can do is to have good information,” she says. “You must be trustworthy.” To that end, she suggests citing the sources for your public statements wherever possible, and ensuring that your sources are credible. “If you give them false information, they won’t trust you any more,” she points out.

Aside from providing research that has been researched and validated, another important media strategy is to take responsibility for ensuring that the reporter you are talking to fully understands the issue. Most members of the media are not experts in your subject area, so it’s up to you to educate them. “If they don’t understand, they won’t publish it,” Busaniche says.

Finally, Fundacion Via Libre has also learned that the press is more likely to respond to press releases if they are sent out selectively. Instead of contacting reporters for every minor issue, Busaniche advises, save the alerts for when something truly monumental is occurring. That way, media outlets will be more likely to take notice.

Lessons Learned: 
  • Cultivate relationships with the press.
  • Be sure you are precise and trustworthy in conversations with the media.
  • Don’t call the press for everything. Select your topics carefully.
  • Connect the local press with experts in the field.