[P2P-F] Proposed Ecuadorean Criminal Code poses serious threat to user privacy

[Michel Bauwens]

On 14/11/13 19:35, Gordon Cook wrote:
> Proposed Ecuadorean Criminal Code poses serious threat to user
> privacy
>
>
https://www.accessnow.org/blog/2013/11/13/proposed-ecuadorean-criminal-code-poses-serious-threat-to-user-privacy
>
>  12:33pm | 13 November 2013 | by Fabiola Carrion, Francisco Javier
> Vera Hott, Jochai Ben-Avie
>
> Ecuador is set to finish a major revision to its Criminal Code on
> Friday, and it?s not looking good for user rights. Even as the
> country?s president, Rafael Correa, has been outspoken in
> criticizing NSA surveillance, the Ecuadorean Assembly is charging
> ahead with a requirement that all internet service providers spy on
> their customers, in violation of the country?s Constitution and
> international law.
>
> One of the worst provisions of the proposed Criminal Code would
> require all internet service providers to retain records of user
> internet activity for at least six months, and to video record
> users of cybercafes (more on that below).
>
> Article 474, as translated by Access, states:
>
> 1. ?The suppliers and distributors of information and
> telecommunications services must retain subscribers? or users? data
> about the contract and preserve the integrity of data related to
> phone numbers, static and dynamic IP addresses and connecting
> traffic, as well as connection traffic, transactional access and
> information of wireless communications links of service and
> communication route for a minimum of six months in order to perform
> relevant investigations . . .?1
>
> As written, this provision is a violation of Article 66.21 of
> Ecuador?s Constitution, which establishes that ?any physical and
> virtual information . . . cannot be retained, opened or examined,
> except in those cases provided by law, without prior judicial
> intervention.? (Although this excerpt makes references to instances
> ?provided by law,? the clause refers to the country?s Criminal
> Procedure, not the Criminal Code under revision at the moment.)
>
> The bill fails to provide any meaningful privacy or due process
> protections and does not specify any limitations on how these data
> can  be used, with the effect of turning all Ecuadoreans into
> suspects.
>
> It would be a fundamental change in how the government accesses
> user data, installing a mandatory data retention regime where none
> currently exists -- currently, law enforcement must first get a
> court order before obtaining user data.
>
> The Ecuadorean Constitution is quite explicit about the kinds of
> communications that are protected, online and offline, and is very
> deliberate about the prohibition against arbitrary retention or
> examination of this information. A departure from this
> constitutional standard would enable mass surveillance and have a
> chilling effect on freedom of expression, in violation of the
> International Covenant on Civil and Political Rights and the
> American Convention on Human Rights, both of which Ecuador has
> ratified. Ecuador has already slipped 15 spots in RSF?s World Press
> Freedom Index this year, demonstrating how much these rights are
> already under threat.
>
> It?s worth noting that data retention provisions in other countries
> have been thrown out on the basis of mass violation of rights: The
> Chilean Constitutional Court decided to ban a similar provision in
> 2011, ruling that such a measure would disproportionately affect
> the fundamental rights to privacy and equality before the law of
> cybercafes users. The decision held that it was unacceptable that
> the law 1) considers only cybercafe users who are 2) engaging in a
> perfectly legal and legitimate activity.
>
>
> Cybercafes forced to videotape users
>
> Another concerning provision of the proposed Criminal Code, in the
> second part of the Article 474, would require all cybercafes to
> install video cameras. As translated by Access, it states:
>
> 2. ?The subscribers of the telecommunications services that share
> or distribute to third parties their data or voice connection, in a
> commercial or gratuitous way, must store their users? data on the
> bases of a physical connection registry and preserve the integrity
> of the data about user identification, date and time of the initial
> connection, for a minimum time of six months with the appliance of
> video cameras, to be able to perform the relevant
> investigations...?
>
> Although the government justifies placing video cameras in
> cybercafes to record any crimes that occur in these venues, members
> of Ecuadorean civil society counter that the provision is intended
> to facilitate the government?s efforts to associate the identify of
> the people using cybercafes with their online accounts. Such an
> action would be fundamentally destructive to online anonymity.
>
>
> Economic costs endanger internet access and low-income communities
>
> In addition to the deep human rights concerns, Article 474 also
> poses significant economic costs. Many of Ecuador?s internet users
> connect through cyber cafes, often small businesses in the room of
> a private home. Section 2 of the Article provides that those
> suppliers and distributors of information also must record the user
> identification, date and time of connection, as well as record
> their activities on video, again, for a minimum of six months.
>
> The high costs of this provision -- from purchasing video recording
> equipment to storing all user data for at least six months -- may
> prove to be prohibitively expensive for many of these cybercafes,
> forcing them to go out of business. This would certainly diminish
> Ecuador's already low Internet penetration rate of 27.2%.
>
> Given that cybercafes are disproportionately used and run by
> low-income communities, this provision will not only place an
> economic strain on the families that provide these services, but
> also result in discrimination against people of low socioeconomic
> status who use  cybercafes to access the internet. If this
> provision is included in the final text, being poor in Ecuador will
> be a de facto condition for surveillance.
>
>
> The International Principles on the Application of Human Rights to
> Communications Surveillance
>
> Ecuador?s proposed Criminal Code violates multiple fundamental
> rights and is an economic burden for businesses and families. The
> International Principles on the Application of Human Rights to
> Communications Surveillance, which have been endorsed by more than
> 280 organizations worldwide and have been held up as a standard in
> global fora, can serve as a guide to the Ecuadorean government as
> it reforms its Criminal Code. A review of these standards --
> principally due process, adequacy, and integrity of communications
> systems -- would significantly improve the text of the Code and
> protect Ecuadoreans? rights to privacy, freedom of expression, and
> other fundamental rights.
>
>
> 1 Los abonados de servicios de telecomunicaciones que compartan o
> distribuyan a terceros su interconexión de datos o voz de forma
> comercial o gratuita, deben almacenar los datos relativos a un
> usuario sobre la base de un registro físico de conexión y preservar
> la integridad de los datos sobre identificación del usuario, fecha
> y hora de conexión inicial y final, por un tiempo mínimo de seis
> meses con la aplicación de medidas de cámaras de video seguridad, a
> fin de poder realizar las investigaciones correspondientes."
>
>
>
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