What transparency standards should we demand from States using surveillance technologies?

by Digital Rights LAC on September 30, 2023

vigilancia latam

The news that Germany sells surveillance technologies, without proper licensing to Argentina, Chile and Mexico, reveals the urgent need for putting pressure on the state to balance the comprehendable need for public safety with respecting the human rights of its citizens.

By Francisco Vera, Derechos Digitales*.

Undoubtedly, the biggest news of 2013 was Edward Snowden’s revelations about the NSA surveillance of our digital communications. This allowed the public to understand more about the scope and extent of these activities on a global scale, and of the low level protection of our online communications. But these dubious activities of intelligence agencies are not limited to the United States, the case of Latin America also deserves special attention.

A new clue was revealed by a pair of prestigious researchers who analyzed the export regime of surveillance technologies taking place in Germany. Among the most interesting aspects of the article is the fact that the global surveillance technology industry creates between three and five billion dollars a year, that Germany is also increasing its efforts to regulate the export of these technologies, and that among the countries that have acquired them, three of them are in Latin America: Argentina, Chile and Mexico.

In figures reported by Der Spiegel, Germany registered exports of 1.2 million euros in surveillance technology to Argentina, 174,000 euros to Chile, and 1.2 million euros to Mexico. However, as is stated in the article, the share of these technologies for monitoring use makes up around 20% of the total.

Nevertheless, Germany is not the sole supplier of these surveillance technologies, and the sale of these products is not backed with the appropriate licenses from its government. Hence the fact that, for example, FinFisher, one of the technologies that should be subject to export controls in Germany and England, has been found in countries like Mexico and Panama, as shown in a Citizen Lab investigation.

Unfortunately, although most Latin American countries have democratic governments, they have states with streaks of authoritarianism and weak legal and institutional frameworks regarding human rights. This forces defenders and activists who support the right of privacy to place all their attention on these reports about the acquisition of surveillance technology. Why were they purchased ? How are these types of purchases regulated ? How do they affect the rights of citizens? Many more similar questions could be asked.

Additionally, it is important to consider that discourses on public safety have taken up the agenda in several countries due to drug-related violence in Mexico, guerrillas and paramilitary groups in Colombia, or smaller scale domestic terrorism in Chile. This has promoted a series of public policy responses aimed at giving greater powers to the police and intelligence agencies. The new Mexican Telecommunications Act, the PUMA espionage system of Colombia, or discussions in Chile about changing its intelligence agency are an example of the new direction of public policies: providing police and intelligence agencies with new powers.

These discussions, however, leave out the pressing need (in addition to the full observance of human rights) to improve the current low levels of transparency and accountability, especially in the case of several agencies that are blemished with an authoritarian and undemocratic past. Greater transparency and accountability can determine whether these greater powers will have a positive impact on public safety, and whether those powers are being used efficiently.

Thus, it becomes imperative to design systems which oblige agencies that import and use these mechanisms to be made accountable for their use, by taking the following steps:

- Being transparent about the investments, the names of the suppliers of the surveillance technologies and their country of origin, in order to have audits to see if the supplier has the necessary export licenses in its country of origin.
- Implementing import licenses for private companies that wish to use these technologies, limiting any possible uses which may affect the exercise of human rights.
- Forcing the police and intelligence services to only allow the use of these tools by obtaining the respective court orders, which in turn must meet the strict standards of human rights agencies.
- Having mechanisms for the accountability of the police and intelligence agencies which ensure the participation of the government, congress and judiciary in each country, through effective and informed procedures.
- Posting transparency reports that indicate, without having to individualize each case, how many surveillance activities were undertaken within a specific period.

The adoption of these measures is the only way to maintain a system that can reasonably balance the demand for public safety with respect for human rights. In times like this, where digital surveillance has become a priority for governments and activists, it is essential to adopt public policies that respect human rights, ensuring transparency and accountability for these activities in the region.

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*Francisco Vera is the public policy director of Derechos Digitales.