Can the government monitor social media?

One of the great debates that sparked the growth in the number of people infected by the coronavirus is that of the surveillance of those who must comply with the mandatory quarantine for having returned from areas considered “at risk”.

While the Government toughened penalties for those who violate this confinement (contemplate even 15 years in prison and fines of 100,000 pesos) Many Argentines have ignored these warnings.

Security Minister Sabina Frederic herself acknowledged that federal forces are carrying out “cyber patrols” and tried to reassure that it is not the same as “cyber espionage”, after leftist leaders questioned the actions of the portfolio during the pandemic.

He discussion of control that can be exercised-or not- on citizens had been questioned after several cases that turned viral.

One of the most talked about happened in Rosario, in which a young man who came back from Europe did not comply with the protocol, he moved freely through the streets and reflected it on social networks, where he mocked the measures taken to minimize the impact of the virus.

The complaints from neighbors, together with what was published on the networks, were sufficient reason for the authorities will detain her at your home.

The incident also generated a new debate: since the majority of people who violate the quarantine publish their daily lives on social networks,it is possible for the government to “patrol” them for the purpose of find violators?

Quarantine, also virtual

Crime prevention authorities warn that users are going to “have to get used” to the police raking their “open” accounts to investigate their behavior.

However, human rights defenders ironically say that a patrol car does not enter the houses or look at what is in the closet, while the cyber patrolling makes contact with sensitive data protected by Habeas Data Law and by international conventions to which Argentina adhered and which, therefore, have constitutional rank in the country.

For this reason, they insist that the Police should only enter social networks and in other media only if a court order authorizes it and within the framework of a specific process.

At the same time, they admit that in case of pandemic, the authorities can enter to the public internet sites in which it pours private information of citizens, although fulfilling certain requirements.

Eduardo Ferreyra, of the Association for Civil Rights (ADC), tells iProUP: “While the data tracking health may be necessary for the authorities tackle pandemics like coronavirusWe must prevent this situation from being used by governments to engage in surveillance activities. ”

For this reason, it considers that any use of open data must comply with the requirements established by legislation.

“This means that you must collect only essential information For the homework, prevent the dissemination of names of affected people, prevent this information from being used for other purposes and above all, destroy it once the reason for the collection has disappeared, “he points out.

Ferreyra emphasizes that “in short, the pandemic must not justify mass surveillance and the subsequent damage to the rights of the people “.

By contrast, consumer law attorneys warn that Supreme Court rulings leave the door open for civil trials from Users affected against the State and against companies that provided information to the police without their consent and without a court order.

The reality in Argentina is far from the desired standards. An ADC study shows that most companies that provide the Internet do not require the authorization of a magistrate for the delivery of information, even in the case of common crimes, as well as others that collect sensitive data through networks or other applications.

Authorities in favor of digital raking

The chief prosecutor of the Specialized Unit on Crimes and Computer Infractions of the Buenos Aires Public Ministry, Daniela Dupuy, defends in dialogue with iProUP what “police have the power to enter open networks, as long as you can prove that you did not violate the user’s privacy or privacy by accessing metadata. “

“The police information on the commission of crimes taken from public sources is validDupuy emphasizes. He adds that “the same user chooses to be investigated when he decides to have a public profile on Facebook, for example.”

“He cyber patrols by open sites is of the same order as the prevention what the police do when they walk the streets. Equally, it can take knowledge of crimes in public sources of Internet “, assures the prosecutor.

And it exemplifies that in the same way that the police come to know through a tour of the streets that in a certain neighborhood, at that time, in such a square, wallets are stolen and thus can reinforce surveillance at that site, the security forces can take knowledge that child pornography is distributed using software that can be viewed by anyone.

The prosecutor Dupuy even admits to a certain extent the realization of artificial intelligence tasks provided that stigmatization of individuals or groups with the use of software is avoided.

“We’re achieving convictions in Justice from the city of Buenos Aires when you can check the legitimacy of police action. In other words, it was carried out by valid means and it was ordered by a prosecutor, “adds Dupuy.

That legitimacy is achieved even when the police with crimes that were not being investigated by court order, according to Dupuy, if the police declare that the information collected on social networks “I was in a open folder“was obtained” without diving, which is called plain view in comparative law. “

Along the same lines, Florencia Bossi, specialist in defense of personal data of the Allonca study, considers that at post details of the private life in the public sites of data you lose control of that data as subject to confidentiality.

Bossi argues iProUP that by publishing on open websites a “consent” is given for the use of any of the personal data included, also from the authorities. “It cannot be said that they are private, so you have to be careful with what is published on the Internet,” he warns.

Cyber ​​patrolling

From the opposite sidewalk, Ferreyra says: “Cyber ​​patrolling in open networks is a measure that impacts privacy and the protection of personal data.”

“The argument that it is similar to police patrolling of the streets does not contemplate particularities of the digital sphere: every move on the internet leaves a trail, which added to the power of technology to add and collect information makes all those data become sensitive“affirms the lawyer.

“If the movements are to be watched on the grounds that they are public, people will inhibit themselves from certain valid behaviors,” he says. And he clarifies: “We are not opposed to the police investigate crimes on social networks, whenever you do with the order of a judge and in a specific case“

In his vision, “cyber patrols are not comparable to those carried out on the streets and are very risky”, which is why he understands that laws must update the concept of privacy so that it reaches the “right of people to control their information and what others do with it. “

Far from the standards

An ADC study of companies with internet data access reveals that several companies do not plan to ask for the authorization of a judge in the framework of a judicial process for provide data to the police about its users, and no differences between the delivery of content data and metadata.

In this sense:

– Telecom informs that it can be relieved of the duty of privacy “by judicial resolution”. But content data and metadata can be interpreted together

– Movistar requires judicial authorization before the request for information from clients, although it leaves the door open for administrative action. Does not differentiate between content data and metadata

– In Telecentre and iPlan there are no references the way government authorities should request personal information

– DirectTV and Claro they can deliver information by request of administrative authorities and they also do not differentiate between data and metadata

Espionage trials

Attorney Flavio Lowenrosen, a specialist in consumer law, entrusts iProUP: “There is reserved data in transactions, since they may contain sensitive information or be protected by bank secrecy or the privacy of the user. “

For this reason, the Supreme Court ruled in the Halabi case the unconstitutionality of a law that ordered “all telecommunications service providers” to the “acquisition and derivation of communications that they transmit, for their remote observation at the request “of judges or prosecutors.

The argument of the highest court was that “the rule made available to the State all information to which the telephone provider companies had access o The Internet “affected the right to privacy protected by Article 19 of the National Constitution,” recalls Lowenrosen.

The Court gave its sentence a collective scope, erga homnes, for all citizens, so the law was void.

The arguments of the Supreme Court were that “everything that individuals transmit through these channels integrates the sphere of personal privacy” and, therefore, is under “guarantee against injury” through “any interference or arbitrary or abusive interference in the private lives of those affected. “

On the other hand, the Court indicated that it was the same contested law that provided that the communication companies would not be responsible civilly by damages reported by an individual by data collection by these means, but the State itself.

In addition, the norm recognized that “the communications capture, referral and registration system that it implemented could not respect the minimum guarantees required for such drastic interference in the private sphere of individuals” according to the court.

* Dolores Olveira

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