01/25/14 — A Mexican Supreme Court (Suprema Corte de Justicia Nacional, SCJN) ruling on January 16 has raised concern among human rights advocates about the protection of citizens’ right to privacy. In an 8-3 vote, the Court approved a practice that will allow Mexican prosecutors to obtain cell phone tracking data without a warrant if the individuals are involved in a criminal investigation of a serious crime, including murder, kidnapping, drug trafficking, or extortion, among others. The ruling upholds reforms to the Federal Code of Criminal Procedures (Código Federal de Procedimientos Penales) and the Federal Law of Telecommunications (Ley Federal de Telecomunicaciones).
Despite criticism that the decision could lead to violations of right to privacy and abuse of power by authorities, the Court approved the measure with specific parameters to curtail such concerns. First, authorities must only request the tracking data in “cases of the utmost urgency.” They must then present an explanation to the cell phone company describing at a minimum the motivation behind the request, the investigation and potential crimes in question, and how the geo-tracking information could expedite the investigation. A copy of this document would then be placed in the case’s file as a permanent record of the request.
Three SCJN judges—Arturo Zaldívar, Alfredo Ortíz Mena, and Fernando Franco—proposed these restrictions be added to the reform before they approved the measure. Meanwhile, five other judges—Margarita Luna Ramos, Juan Silva Meza, Luis María Aguilar, Jorge Pardo, and Alberto Pérez Dayán—all voted in favor regardless of the parameters, while the remaining three judges—Sergio Valls Hernández, José Ramón Cossío, and Olga Sánchez Cordero—voted against. Dissenting Judge Valls Hernández pointed out that a judicial review of the request has been the mechanism in place to prevent abuse of power; yet it is precisely this step in the process that is being removed by the Court’s ruling to sidestep obtaining a warrant to track cell phones. Human rights advocates, including Mexico’s National Human Rights Commission (Comisión Nacional de los Derechos Humanos, CNDH) who initially petitioned the Supreme Court to declare the practice unconstitutional, have also criticized the Court’s decision.