The "metadata debate": A Latin American Perspective
by Luis Fernando García
In recent years, especially after the Snowden revelations, a legal debate on metadata has sparked, primarily in the United States.[1] In essence, what the legal scholars and US government officials have been arguing is, first, whether communications metadata deserves the same protection as the content of communications, and second, whether, in any case, the collection of metadata alone constitutes an interference with the right to privacy or whether the analysis of such data would be necessary to raise the question.
In a way, many seem to be observing this debate as if it would forever determine the scope and limits of the right to privacy around the world. However, this view ignores that these questions have been raised in other parts of the world. For example, in Latin America, constitutional and human rights courts have produced interesting decisions on the matter.
On the question of whether communications metadata is protected by the right to privacy, the Inter-American Court of Human Rights has decided in Escher v. Brasil [2] that both the content and metadata are protected:
“[The right to privacy] applies to telephone conversations irrespective of their content and can even include both the technical operations designed to record this content by taping it and listening to it, or any other element of the communication process; for example, the destination or origin of the calls that are made, the identity of the speakers, the frequency, time and duration of the calls, aspects that can be verified without the need to record the content of the call by taping the conversation. In brief, the protection of privacy is manifested in the right that individuals other than those conversing may not illegally obtain information on the content of the telephone conversations or other aspects inherent in the communication process, such as those mentioned.”
In a similar way, the Supreme Court of Mexico decided that accessing the data inside a cellphone of a detained person by the police without a warrant violates the right to the privacy of communications.[3] In this the decision, the Mexican Supreme Court considered that the cellphone data protected includes the metadata:
“The object of the constitutional protection of the right to the inviolability of private communications [...] does not only make reference to the communication process, but also the data that identifies the communication. In order to ensure the privacy of any private communication, it is necessary that the external communications data is also protected. This is because, while it is true that the data does not refer to the content of communications, it is also true that in many occasions [metadata] offers information about the circumstances in which the communication takes place, affecting directly or indirectly, the privacy of the communicants.”
The Supreme Court of Mexico has also decided that the sole collection of data constitutes an interference with the right to privacy:
“The violation to the right [to privacy] is consummated in the moment of the hearing, recording, retaining, reading or registering -without the consent of the communicants or a judicial warrant-, of an external communication.”
This way, for the Supreme Court of Mexico, and others, such as the Supreme Court of Argentina[4], the sole collection of metadata constitutes an interference that needs to comply with the principles of legality, necessity and proportionality.
These legal precedents do not mean that Latin America is some sort of privacy haven. In fact, despite these precedents, Mexico just approved a new Telecommunications Law that mandates the retention of data of all users and expands access powers to a broad range of authorities without even requiring a warrant or any other safeguard.
In a similar way, the largely hailed Marco Civil of Brazil includes broad provisions mandating data retention of a broad range of user information. Other threats come from outside the region, but in he same way, these legal precedents have mattered little to stop the NSA from illegally collecting all of the communications metadata of Mexico, as it has been recently revealed.[5]
Notwithstanding, from a legal point of view, it seems incontrovertible that metadata is protected by the right to privacy as much as the content of communications, and that the collection of such metadata needs to comply with the principles of legality, legitimate aim, necessity, proportionality, among others.
While the debate in the US is important given the pervasiveness of the NSA surveillance, it is also important to recognize the opportunities some regions have to further develop electronic privacy standards on the light of recognized human rights law and the influence these regions should have in the global debates on privacy.
In the same way, Latin American countries should stop the trend of importing legal standards that are incompatible with its legal tradition and with the Inter-American human rights law that applies here. We should reject this sort of legal colonialism that has attached the import of billions of dollars worth of surveillance equipment, software and business models from which U.S. and European companies benefit so much.
The threat is not only the financial bankruptcy of Latin American institutions, but the bankruptcy of any regional democratic aspirations.
[1] See for example. Orin Kerr. Metadata, the NSA, and the Fourth Amendment: A Constitutional Analysis of Collecting and Querying Call Records Databases. The Volokh Conspiracy; Laura K. Donahue. NSA surveillance may be legal – but it is unconstitutional. Washington Post; Randy E. Barnett. The NSA's Surveillance is Unconstitutional. The Wall Street Journal.
[2] Inter-American Court of Human Rights. Case of Escher v. Brasil. Preliminary Objections, Merits, Reparations and Costs. Judgement of 6 July 2009. Series C No. 200, para. 114.
[3] Supreme Court of Mexico. 1st Chamber. Contradicción de Tesis 194/2012. Judgement of 10 October 2012.
[4] Supreme Court of Argentina. Halabi Ernesto v. PEN Ley 28.873 s/amparo ley 16.986. Judgement of 24 February 2009.
[5] The Intercept. Data Pirates of the Caribbean: The NSA is recording every cellphone call in The Bahamas. May 19 2014.
