08/26/14 (written by cmolzahn) — By a vote of four to three, the Federal Institute of Access to Information and Protection of Data (Instituto Federal de Acceso a la Información y Protección de Datos, IFAI) elected not to challenge the constitutionality of Mexico’s new telecommunications law (Ley Federal de Telecomunicaciones y Radiodifusión). A vote in favor of the proposed measure would have brought the articles of the law in question before Mexico’s Supreme Court (Suprema Corte de Justicia de la Nación, SCJN). The agency’s decision not to take action against the controversial law represents the most widespread criticism of the agency since the appointment of its new commissioners in April of this year.
The majority—comprising Ximena Puente de la Mora, IFAI president; Patricia Kurzcyn; Rosendoevgueni Monterrey; and Francisco Javier Acuña—found that the articles of the law in question did not contravene principals of access to information and protection of private data. Three of these voters also maintained that the IFAI does not have the authority to challenge the points of contention in the law, which involve issues of legality, access to justice, human rights, and privacy over which the IFAI does not have jurisdiction, though aside from the Mexican Congress there was no other agency that could compel the SCJN to take up the matter. Voting in favor of challenging the law’s constitutionality were commissioners Areli Cano, Óscar Guerra, and Joel Salas, who argued that it violated the tenets that the agency is charged with protecting. Salas furthermore argued that the IFAI did, indeed, have the authority to refer this issue to the SCJN, given its expanded autonomy and authority recently granted by Congress. For its part, IFAI’s counterpart in the Federal District (Instituto de Acceso a la Información Pública del Distrito Federal, InfoDF) voted unanimously in favor of bringing the matter before the SCJN. The agency issued a statement to the court challenging the constitutionality of the law, on the grounds that it “threatens the right to protection of personal data and privacy.” It is unclear whether the SCJN will hear the case.
At issue are Articles 30, 189 and 190 of the telecommunications law, which was passed on July 14. Transparency advocates criticized Article 30, as it states that interviews between the Federal Telecommunications Institute (Instituto Federal de Telecomunicaciones) and the agencies it supervises must be recorded, but those recordings will not be made public. No rationale for this lack of disclosure is made evident in the law. Meanwhile, privacy advocates have expressed concern over Articles 189 and 190, as they allow government agencies to employ real-time geo-location to track individuals’ whereabouts and create databases using information gleaned from mobile phones, including calls, text messages, and other personal data, without clarifying which authorities will have the power to perform such actions, the circumstances that would merit them, or limits for accessing personal data, and without a court order.
Leading up to the passage of the law, there were protests that manifested both in the streets and on social media. Upon the law’s publication, research group Fundar, along with 218 other civil society organizations, sent an open letter to the IFAI urging it to challenge the law’s constitutionality, in that it included measures that violate transparency and privacy standards outlined in Article 105 of the Mexican constitution. IFAI had announced on July 10 that it was looking into the constitutionality of the secondary telecommunications legislation. Before IFAI’s eventual decision to not pursue action by the SCJN, Justine Dupuy, writing on behalf of Fundar in Animal Político, argued that, given the privacy and transparency implications in the law, it was ultimately IFAI’s responsibility to challenge it. While recognizing the legitimacy of using the surveillance measures sanctioned by the law to fight organized crime, she warned of the dangers of carving out legal legitimacy for those measures without a clear regulatory framework, which “opens the door for their arbitrary and abusive use.”
Following IFAI’s decision, speaking with Carmen Aristegui with news outlet MVS, Haydee Pérez, director of Transparency and Accountability (Transparencia y Rendición de Cuentas) with the research organization Fundar, said that in this instance IFAI had failed a citizenry that had “given a fight to have rights and in this case the protection of data.” She also criticized legislators sharing her concerns for not taking sufficient action before the 30-day deadline to refer the law to the SCJN had passed. In the same interview, Senator Javier Corral of the National Action Party (Partido de Acción Nacional, PAN) was somewhat more optimistic than Pérez, defending his and other dissenters’ efforts to bring the matter before the SCJN, saying that despite the Party of the Democratic Revolution (Partido de la Revolución Democrática, PRD) roundly voting against the law, many refused to engage in the Congress’ proceedings to explore whether to bring the matter before the SCJN, since the process was “full of simulation,” led by PAN President Gustavo Madero. In the end, opponents in the Chamber of Deputies were unable to garner the 33% of its members and of the Senate required to issue a challenge to the law before the SCJN.