In Argentina, It’s Not Too Late To Make Things Right Regarding Privacy
In January 2015, the intelligence regime in Argentina was put in the limelight following the death of Prosecutor Alberto Nisman. It was alleged that the intelligence services were involved in his death. This scandal prompted reform of the country’s intelligence system.
In February of the same year, the Intelligence Act (N° 25.520) was amended by the Federal Intelligence Act (N° 27.126). Over a two-year period, several modifications of the structure of the intelligence apparatus were made. The body permitted to undertake communication surveillance was moved from the former Secretary of Intelligence (SIDE) to the Public Ministry, and finally under the jurisdiction of the Supreme Court.
Finally, in late September 2016, the Supreme Court created the Office of Capture of Communications (OCC). The OCC became the only body permitted to undertake communication surveillance in Argentina.
And whilst the above may appear to be all in order, the reality is far from it. Argentina had a chance to start with a clean slate, to wipe clean the poor record of its intelligence agency, and yet, it didn’t.
The aforementioned reform process failed to yield the changes required to ensure an effective legal framework governing surveillance. The intelligence system in Argentina remains dysfunctional and opaque, and is not subject to appropriate checks and balances or independent oversight. There is no transparency of its activities, and no accountability of its budgets.
Finally, as a result of the ongoing lack of transparency of Argentina’s surveillance policies and practices, it is unclear what surveillance capabilities the country currently has. The concerns highlighted above are heightened by how little publicly available information there is, as well as evidence indicating the purchase of intrusive surveillance technologies and reports of the surveillance of politicians, journalists and other activists.
We are calling on the government of Argentina to take the necessary steps to ensure they comply with the International Covenant on Civil and Political Rights, including Article 17, in relation to ensuring independent oversight, transparency and accountability of the current or future organs involved in surveillance.
Similarly, when it comes to data protection, the authorities seem to be of good intentions, and yet their actions have fallen short. While we welcomed the open and inclusive reform process initiated in 2016, we are concerned by the recent developments that are occuring in parallel to this process, which impact the data protection regime in Argentina. A Decree of Need and Urgency was passed in September 2017, and modified the newly adopted Access to Information Law in various ways. This brought the Argentinian Data Protection Authority into the structure of the Access to Information Agency. We are concerned that this merger will mean that the Authority will not be given sufficient recognition, and that consequently, data protection will not be given the same level of recognition and enforcement as access to information.
If Argentina is to prove its commitment to a truly, open, transparent and efficient reform process, it must do so right now before it is too late. This is even more important, given the data-intensive initiatives which are being deployed in an inadequate legal framework, such as the ever expansive centralisation of data being collected from various public databases such as SIBIOS. With the coming into force of the EU General Data Protection Regulation around the corner, this is the time to get it right.
But it’s not all gloom and doom. An opportunity is right around to corner for Argentina to reaffirm its commitment to the right to privacy and to protect the data of its citizens. On Monday, 6 November 2017, the country will be reviewed by its peers as part of the 28th Universal Period Review. As part of this process the Asociación por los Derechos Civiles (ADC) and Privacy International (PI) submitted their concerns and recommendations on the right to privacy in Argentina. Leading up to the review next week, we presented our concerns to various Permanent Missions and took part in various pre-sessions. We hope that our concerns will have resonated with those we spoke to and that recommendations will be made on the right to privacy, thus sustaining efforts made within the UN human rights monitoring mechanisms, including the UPR, to advocate for better privacy protections for all.
Through this process, countries have a chance to request that Argentinian authorities demonstrate what actions they have taken to improve the human rights situations in their country, and to show how they will overcome challenges to the enjoyment of human rights such as the right to privacy. Let us hope they seize this opportunity.