Unblinking Eye, EFF's giant, deep research report (available in Spanish, English and Portuguese) on the state of surveillance law in latinamerica, reveals an alarming patchwork of overbroad powers given to police forces and government agencies.
In the 1980s and 1970s, the military dictatorships of Argentina, Chile, Paraguay, Bolivia, Uruguay and Brazil pooled their resources in something called "Operation Condor," which was used to effect mass kidnappings, torture, murders and disappearances. Today, less than a generation later, these countries and their neighbors are effecting surveillance dragnets that are one click away from totalitarianism. Following a military coup in one of these countries, the new generalissimos would be able to quickly crush their opposition and undertake mass arrests of all potential dissidents.
The surveillance laws in these countries have severely lagged behind the powers that the countries' spies have bought for themselves through purchasing new high-tech toys from companies in the USA and EU. These old laws assume that wiretapping happens to one phone line at a time, not across a whole country's communications -- communications that yield far more intimate and compromising information than could be gleaned by spying on the old wireline telephone system.
Having revealed the bizarre, outdated laws in these countries, EFF and its international NGO partners are calling on governments to reform their spying laws around "necessary, adequate and proportionate" principles that ensure that the rule of law and human rights are not set aside in the rush to rubberstamp the new powers that the spy agencies have claimed for themselves.
The constitution of every Latin American country recognizes a right to privacy in some form, most commonly as a general right to private life or intimacy. Sometimes, it is protected as multiple, specific rights: a right to the inviolability of communications; a data protection right; or habeas data, which varies from country to country, but in general, habeas data protects the right of any person to find out what information is held about his or her person.
Unfortunately, despite this consensus, most states do not implement those rights in a way that fully complies with international human rights standards.
The Necessary and Proportionate Principles provide a touchstone for assessing whether a state's communications surveillance and interception practices comply with its human rights obligations. In this paper, we assess how closely each state's practices reflect those Principles. Using this analysis, we identify good practices that should serve as a model for all states, as well as specific reforms that will bring law and practice into compliance with human rights standards.
Our report also identifies deficiencies that are widespread throughout the region and are in need of special and immediate attention. Latin America appears to lag behind the rest of the world in permitting regulations that require private companies to retain data about the communications of the entire population. It stands in stark contrast to Europe, for example, whose own European Data Retention Directive was declared invalid after a successful human rights-based legal challenge. Nor has Latin American law kept up with the ever-broadening scope of “communications surveillance.” As a result, new surveillance technologies such as cell-site simulators or IMSI catchers (which intercept cell phone signals by imitating cell towers)4 and malware (software that is used to harm computer users)5 are in widespread use without any specific authorization or human rights protections in place. States, too, have failed to broaden the scope of their surveillance laws to eliminate the outdated distinctions between the content of communications and other communications metadata.
Beside these general concerns, we can categorize the failings, reforms, and occasional successes of Latin American surveillance law under the individual principles of the Necessary and Proportionate standard.
Necessary and Proportionate:
INTERNATIONAL PRINCIPLES ON THE APPLICATION OF HUMAN RIGHTS TO COMMUNICATIONS SURVEILLANCE [EFF/Necessary and Proportionate]
Who can spy on us?
The state of communications surveillance in Latin America [EFF/Necessary and Proportionate]