On April 25 the Supreme Court of Justice of the Nation declared unconstitutional the decree that created the National Registry of Mobile Telephony Users (Panaut), which ordered the collection of biometric data, violating the rights to privacy, intimacy and protection of personal data of users.
As a lesson so that it is not repeated, it is worth highlighting the arguments of each minister, so that neither legislators nor telecommunications regulators intend to violate our fundamental rights enabled by Information and Communication Technologies (ICT).
The ministers agreed that the panaut it was not unconstitutional in itself. The proposal derived from the growth of crimes committed through mobile devices. Its creation was justified to contribute to justice. But the legislative design and the implications were unconstitutional, because it was disproportionate to collect personal data for that purpose.
the rapporteur minister Norma Lucia Pina Hernandez stressed that the Panaut did not define the use and destination of the information. Consent was not relevant. He did not foresee how long the state would remain in possession of the data. The decree generated a strong impact on human rights to privacy, intimacy and protection of personal data.
He argued that some measures are already provided for in article 190 of the Federal Telecommunications Law and in the National Code of Criminal Procedures, related to collaboration with security and law enforcement authorities to combat crimes committed through mobile devices.
He said that the Panaut is not a necessary legislative measure in a democratic society. It does not maintain a balance between the need for the data in limited circumstances and due respect for the right to privacy. Nor are specific and sufficient protection safeguards provided to guarantee the security of the database, avoid the misuse of the information or its violation.
The M. Juan Luis Gonzalez Alcantara Carranca He exposed the limits of the rights to privacy and the protection of personal data, rights of growing importance in light of the development of ICTs and the importance that mobile phones have acquired in people’s intimate lives.
The Panaut presented a false and dangerous dichotomy between security and privacy; giving up control over personal data is in itself a danger to the security of users. He stressed that crimes could continue to be committed using phones registered under other names, with foreign SIM cards or with Internet services to make phone calls.
The m. Loretta Ortiz Ahlf He highlighted that the protection of personal data is due to the relevance they have acquired due to the transformation of our society into an Information Society.
The M. Arturo Zaldivar Lelo de Larrea He said that the Panaut had a vice because it did not establish what biometric data it was referring to. These data can only be in possession of the State for exceptional reasons, as long as there is a secure system that the data will not be used improperly by the State. It is unconstitutional not to require a court order to access the register. It is an arbitrary interference with people’s privacy.
The Panaut had the potential to affect other rights such as freedom of expression, access to information, rights of association and equality. Data theft is very difficult to repair.
He said that it is absurd that a person is going to extort money with his own cell phone in his name and with biometric data. The extortions are never carried out with phones with the name of the extortionist. The obligation to register mobiles generates incentives for the theft of these devices.
The M. Alberto Perez Dayan He stressed that it is not proportional, reasonable or justified to include sensitive data such as biometrics. The use of these and their registration are useful for a passport, a clinical file, a pension system, but not to acquire a mobile phone, only for the fear that they may be used illicitly.
The M. Alfredo Gutierrez Ortiz Mena He stressed that in no democratic state does the government have its own personal database of telecommunications users. Requiring all telephone users to provide their data to continue with their line leads dealers to violate current contracts. The Panaut breached the duty of the State to guarantee that all people have access to telecommunications services.
The M. Luis Maria Aguilar Morales revealed that criminals have opted for the prepaid service so that anonymity prevails. Not being certain about who is the owner of the line does not prevent the investigation and criminal prosecution with a successful result. The obligation of users to provide information about their identity is not strictly necessary to achieve the intended purpose. Not necessarily the owner of the line is going to commit the crime with a telephone registered in her name. The Panaut affected human rights to a significant degree or was difficult to repair.
The m. Yasmin Esquivel Mossa He warned that more than 90% of criminals use prepaid mobile phones to commit crimes. We must not confuse the protection of personal data with shielding anonymity or shielding the commission of crimes. It is valid to register users, only prepaid. Not even the dealers know who bought the equipment and the prepaid SIM cards.
The M. Jorge Mario Pardo Rebolledo he recalled that the Panaut was not contrary to the Constitution, because it intended to cooperate with the security and justice authorities.
The m. Ana Margarita Rios Farjat questioned the indiscriminate use of lines and chips that are practically given away. The Panaut did not shield users from arbitrary and unnecessary interference in the personal information provided to the registry. It is not justified that any authority can access our data.
The M. Javier Laynez Potisek He concluded: a massive collection of personal data is not justified.
Twitter: @beltmondi
President of the Mexican Association of Right to Information (Amedi)
in communication
Media and telecommunications analyst and academic from UNAM. He studies the media, new technologies, telecommunications, political communication and journalism. He is the author of the book media presidentialism. Media and power during the government of Vicente Fox.