On September 13th we submitted an unconstitutional action – under the sponsorship of the lawyers Federico Legal and Ezequiel Santagada of IDEA and in collaboration with the legal clinic of public information access of the National University of Asunción – against the resolution No. 238 of the Ministry of Interior and the subsequent judicial resolutions that validated that decision. The aforementioned arose after the formulation of a request for information under the title “video surveillance cameras – biometrics” where we required, among other points, that the State provide the details of the biometric technology system that is being implemented by the Ministry of Interior and the National Police since July of last year, reports on the details of implementation, protocols and any type of data processing of the people that are used in the facial recognition system, what’s the purpose of the system, if the error rates of the algorithm that the software uses have been evaluated and if an analysis has been made on the impact on human rights regarding the use of the system.
On April 26th 2019, the Office of Public Information Access of the Ministry of the Interior replied by only providing information regarding the public tender for which the biometric technology system would have been acquired, avoiding a clear explanation of what the system acquired actually is, what kind of technology is or how this technology works. Our organization together with IDEA submitted a judicial protection (amparo appeal) claiming the lack of information. This was based on the resolution no. 238/19 by means of which it is resolved that the requested information is of a restricted nature without any basis, despite the fact that the law clearly establishes that for information to be restricted it must be expressly established by law (art. 22 of the Law 5,282); This is not the case since there is no legal regulation that restricts the type of information required.
On this last point it is highlighted that to justify that it qualifies as “national security”, the Attorney General’s Office, legal representative, in this case, argues that by the mere fact of “being material or sensitive information” and having been treated within the National Defense Council “whose deliberations are of a reserved nature”.
The resolution in question violates the right to access information and the responsibility of State institutions to ensure transparency and legal regulations. Given this manifest arbitrariness, we initiated a judicial action to access public information through the amparo appeal. The request was denied, both in the first and second instance under unconstitutional arguments contrary to fundamental rights; undermining the right of the whole society to know about the processing of their personal data by public institutions. Its importance lies in the possibility of revealing details of personal and family life, issues that are protected by the right to privacy. In turn, it violates the right to freedom of expression given that the right to privacy is an essential requirement for the realization of the right to freedom of expression.
Cyber surveillance + biometrics in public spaces
The increasing use of technologies for state surveillance purposes, called “cyber surveillance”, has generated concern in international human rights protection organizations for their ability to injure fundamental rights. This cyber surveillance can take place in several ways, one of them being the one that concerns us: the acquisition and implementation of surveillance software through facial recognition cameras. Its danger lies in the collection and processing of biometric data that, if its implementation is not accompanied by effective protection measures in its use, it may cause violations of the right to privacy to begin with, and of other rights according to each case.
Thus, the former Special Rapporteur on the promotion and protection of human rights and fundamental freedoms in the fight against terrorism of the UN, Martin Scheinin, determined in his report published in 2009 that, of particular concern: “the cases in which biometrics is not stored in an identity document, but in a centralized database, increases the risks of information security and leaves vulnerable individuals. As biometric information increases, error rates can increase significantly. The increase in error rates can lead to the illicit criminalization of individuals or social exclusion. ”Hence the importance in which the state provides what the biometric technology system is, which agency will be responsible for the administration of the database, how the error rates of the algorithm used by the software are evaluated, the period of time in which the information will be stored; while collecting sensitive data of people circulating in public spaces, regardless of whether or not they have been suspected of misconduct and without any apparent guarantee.
In that sense, it is important to emphasize that the concept of “national security” in no way has the scope of legitimizing the use of massive and selective control and surveillance technology of the citizens’s private life within society when such interference is deployed outside of a context of a judicially authorized criminal investigation; so that the scope of this type of technological espionage are public (and not restricted) when they derive from a certain software used in context of deviation of power that instead of “national security” produces legal and personal insecurity for the members of society within the state. This in addition to the growing complaints in the region about frequent facial recognition software errors regarding the misidentification of people for having certain predetermined physical characteristics.
And where is the security?
It is quite worrying that the state organs use the legal norms at their convenience, choosing which ones to comply with and which not according to the case, to the detriment of human rights. Even more serious is that the judges, who must ensure compliance with the laws, legitimize this procedure; This is how sentence no. 70 dated August 25th 2019 states “although it is true what was referred by the lawyer in the sense that it has not referred to which law is the basis for the secret or restricted nature of the resolution 238 cited above, this magistracy must have in mind that the National Police is an internal security body of the State, as provided in article 175 of the National Constitution .. ”According to the above, the reasoning of the judges is that although the information is not restricted by law, according to the established sentence, if it comes from the National Police it is possible to be restricted information. This opens the window to the modus operandi of qualifying any action emanating from the national police as national security for the sole fact where it comes from, without any regulations that determine it. It should be remembered that this logic was that used during the dictatorial era; a period of time to which it has been ensured not to return to through the reform of the National Constitution that governs the legal system and ensures the rule of law.
We share the video of the presentation of the Unconstitutionality Action here: