2014 AnOx alumnus José Antonio Brambila discusses the potential consequences of a new piece of Mexican surveillance legislation.
The Mexican telecommunications law that came into effect in August 2014 is an open window through which many authorities may spy massively and indiscriminately on Mexican citizens. According to some experts, Articles 189, 190, and 194 state that telecommunication server services can retain personal data for up to twenty-four months and are allowed to disseminate that data during that period of time, without warrant. The new law puts Mexicans at risk of becoming the targets of authorities who will have access to Mexican citizens’ personal information, such as the date, time, and duration of conversations and who will be able to locate personal devices in real time. Though the Mexican State does not have the capacity to spy on every one of its citizens, the mere possibility of omnipresent surveillance is an effective means of control. This is especially true for journalists, human rights defenders, and victims of abuse at the hands of the authorities, whose existences can often become thorns in the government’s side.
Privacy plays a central role in the human life; it is recognized in the current international framework not only as a human right, but also as an essential element of the freedom of speech by, amongst others, Article 12 of the Universal Declaration of Human Rights and the 7th Inter-American Convention of Human Rights. Moreover, according to a report presented during a UN plenary session in April 2013 by Frank La Rue, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, privacy and freedom of expression are intertwined rights, and any change made to one can cause results pernicious to the other—privacy is recognized as a pre-condition of the freedom of expression. Harming privacy, the report claims, is proven to cause a “dreadful effect” on victims of this abuse, as well as the inhibition of journalists, human rights advocates, and political activists. The report also recognizes that country governments have an obligation to safeguard the privacy of all electronic communications, including the internet, as well as reinforcing their legal frameworks against any public and private arbitrariness.
It is clear that the latest telecommunication law in Mexico does not match these international standards. The deficiencies of this new law are even more evident when compared to more progressive legislation, such as the Brazilian Marco Civil da Internet, which is considered Brazil’s internet bill of rights. The Brazilian legislation not only guarantees the “privacy and freedom of expression in communication” as well as the “full exercise of accessing the internet” (both in its eighth article), but also secures the neutrality of the web, with which data discrimination on behalf of the service suppliers is prohibited. In contrast, the new Mexican telecommunications law, which was hastily approved with little discussion in Congress, fails to touch upon any of these issues.
The ambiguity of the language in the Mexican law creates an institutional disorder between corporations and Mexican agencies that are performing unrestricted espionage in the country. Article 190 of the legislation gives attributions to the “pertinent authorities,” especially on real time geolocation of communications, without having a section specifying the identity of those authorities. Such ambiguity allows the law to be taken advantage of and used, for example, to prosecute delinquent debtors on behalf of the Legal Proceedings Directorate-General of the Mexican IRS’s Financial Intelligence Unit, which, due to safety concerns, is reluctant to be accountable, and, incidentally, has increased its espionage capacity.
In 2011, the Secretariat of National Defense spent five billion pesos on special equipment to interfere communications and texts. It was confirmed on July 6, 2013 that the Office of the General Prosecutor acquired the espionage software FinFisher—which is used to monitor communications between private users and operates in Mexico through Iusacell and Telmex servers. In 2014, under the pretext of fighting organized crime, the Mexican Center for Research and National Security increased its budget sixteen times. The new Mexican telecommunications law sets a legal framework that allows these and other security and intelligence agencies to abuse the privacy of citizens, while no authority forbids their actions. For agencies already engaging in espionage, the Mexican telecommunications law allows them to legally continue.