Argentina supreme court ruling
Aus Freiheit statt Angst!
In 2009, Argentina's Supreme Court confirmed a decision annulling data retention legislation on the grounds of a lack of precision in its wording. The Court called blanket data retention a "drastic interference with the private sphere of the individual".
English translation (extracts)
22) So to conclude and, without prejudice of the limitations which this Court's jurisdiction has kept in mind according to the indication in recital 7, also as it is convenient to pass lightly over the theme planted as a main question that as has been exhibited throughout this pronouncement, the reference to admissibility of collective action, to the legitimation in order to interpose it and to the projection of the effects of the ruling in which in its channel is passed, depends fundamentally on the kind of right and means used to try protect oneself. The stain of unconstitutionality deduced from the demand that opened this process, fell on Law 25.873 and its regulations. That legal norm incorporated in Law 19.798 -on the regulation of the telecommunications service- articles 45 bis, ter and quater that, in brief, foresee that: a) telecommunications providers will have to have available the necessary human and technological resources for the reception and origin of the communications they transmit, so their distant observation as required by the Judiciary or the Public Prosecutors Office to conform with valid legislation; b) the costs will have to be supported by the providers and the service will have to be available at any moment; c) the providers will have to register and systematize personal (family and home) data of their users and clients and the communication traffic registry for consultation and without charge by the Judiciary or Public Prosecutors Office; d) that information will have to be retained for 10 years; e) the Nation State assumes the responsibility for possible damages and prejudices that might come about for third parties who observe and utilize the obtained information by the foreseen mechanism. In its turn, the Decree 1563/04 regulated the legal norm but its application was suspended later by Decree 357/05. The tribunal a quo observed this respect -by means of a signalling that has stayed firm before the absence of offence- that the suspension of the rules did not imply its exclusion from the legal order and therefore, the rule is susceptible to cause current or impending affection with regards to the rights of the actor. Such a mechanism, which can be found interesting, states that the Office of Judicial Observations of the State Intelligence Secretary (SIDE) will be the body charged with carrying out the interceptions and that the providers will have to obtain the resources to carry them out and maintain them in confidentiality.
23) The appealed ruling, in the phase that also has acquired an immovable character because it did not merit objections from the appellant, confirmed according to their grounds that the decision given in first instance where the declaration of the norms' unconstitutionality remained supported, amongst other assessed ends, in which; a) there is vagueness in the provisions of the law which are not made clear, for what measures the borrower can get the communication's content without the due judicial authorisation, and b) just as the norm is compiled, there exists the risk that the data may be used for distinct ends than those foreseen in the norm.
In relation to the reviewed aspects, it is made opportune to signal that communications as referred to in Law 25.873, and all that the individuals transmit through the appropriate ways, integrate the sphere of personal privacy and are reached by the previsions of Articles 18 and 19 of the National Constitution. The right to privacy and the consequent guarantee against breaking that right acts against all “interference” or, “arbitrary “ or “abusive” “meddling” in the “private life” of the affected parties (conf. Art. 12 of the Universal Declaration of Human Rights and Article 11 inc. 2nd of the American Convention of Human Rights -both treaties with constitutional hierarchy in terms of Art. 75, inc. 22 of the National Constitution-and Art. 1071 bis of the Civil Code.)
24) That, coincidentally, the Interamerican Court of Human Rights has said that the power of the State to guarantee security and maintain public order is not unlimited, rather that “its performance is conditional upon the respect of fundamental rights of the individual that are found under the jurisdiction and that observation of the procedures conform to the Right (…) in strict accordance with the procedures objectively defined in the same” (Interamerican Court of Human Rights. Serie C, num 100, case “Bulacio vs Argentina” sentencing on the 18 September 2003 ptos. 124 and 125 see Rulings: 330:3801)
Surrounding these situations this Tribunal has underlined that only the law can justify the meddling in a person's private life, whenever a superior interest mediates in protecting the liberty of others, the defence of society, good behaviour or the persecution of a crime (Rulings: 306:1892; 316:703, amongst others). In this constitutional framework it must be understood that, concerning the federal penal process, the use of the telephonic communications register for the ends of the penal investigation requires being issued by a competent judge by means of a justified decision (confr. Art.236, second part, of the Penal Process Code of the Nation, according to the text established by Law 25.760) in order that the majority of the habitants are subjugated to the restrictions in this sphere, similarly to those restrictions which exist with respect to the intervention in the contents of written or telephonic communications. This norm concords with article 18 of Law 19.798 that establishes that “Telecommunications correspondence is inviolable. Its interception only comes from the request of a competent judge”.
In the same sense, the Constitutional Tribunal of Spain, during its sentencing on the 5 April 1999 (STC 49/1999) with appointment of the European Tribunal of Human Rights (TEDH) has upheld that “if the secret could rise on the basis of pure subjective hypothesis, the right to the communication's secret (…) would remain materially empty of content.”. Thus, the TEDH accepts as an adequate guarantee, in front of the abuses that the interference only can take place wherever “there exists factual or evidential data that would let us suppose someone tried to do this, that is, committing or committed a serious offence.” -case K., num 51- or where there exists “good reasons” or “strong presumptions” that the offensesoffences are about to be committed. (TEDH S 15 June 1992, case L, num38).
25) That freedom, in every one of its stages, has its history and connotation (Rulings: 199:483); that’s why the considerations in particular on the theme in discussion must maintain a very special attachment to the circumstances of the case. The Tribunal has said that the motives that determine the examination of the correspondence in the case of a delinquent, can differentiate from those concerning bankruptcy, links to business, a subject of taxation obligations, etc; for this reason it has been interpreted that Art. 18 of the Constitution does not demand that the respective regulatory law must be “unique and general” (Ruling: 171:348; 318:1894, amongst others).
Its worth remembering that in the previous Rulings 318:1894 (on the vote of Judges Fayt, Petracchi and Boggiano) it was affirmed that to validly restrict the inviolability of the correspondence, since obviously extending into the present, its required: a) that a law has been passed that determines the “cases” and the “justifications” which will make possible a procedure to take knowledge of the content of the said correspondence, b) that the law is based on the existence of a substantial or important aim of the State, unlinked to the suppression of the inviolability of regular mail correspondence and the freedom of expression; c) that the alluded restriction works with the legitimate proposed end in a compatible means, and d) that the said means are not more extensive than the essential to make the alluded achievement. At the same time, ends and means will have to be weighed up with adjustment to the inferences that might happen in other similar interests.
26) That the resolution in the disputed case by the judges of the cause is adjusted to the requirements that conform to the standard statement and that impose the application of restrictive interpretation criteria in the examination of interceptions of personal communications. Just as it has been appreciated by the magistrates of the intervening tribunals in the previous instances, it is evident that what the questioned norms have established is nothing else than a restriction that affects one of the aspects regarding the sphere of an individual's autonomy that constitutes the right to privacy, as its provisions do not distinguish nor do they specify in a sufficient way the opportunities nor the situations in which the interceptions will operate, whenever they do not specify the handling of Internet traffic information, given the fact that the context implies that navigation data is tied to the content. It is added, to this, that the circumstances of the norms do not foresee a specific system for the protection of the communications in relation to the accumulation and automatised treatment of the personal data. In total, as rightly the proceedings have been judged, it inadmissibly turns out that the authorised restrictions by the law are missing the essential degree of determination that excludes the possibility that its concrete execution by Administrative agents remains in the freest hands of discretion, an affirmation of which acquires fundamental relevance if it is advertised that since 1992 it is the Office of Judicial Observation of SIDE , that acts under the orbit of political power, and which must obey the requirements the Judiciary formulates with the objective to intercept telephonic communications or other mediums of transmission that are affected by these circuits. This is this way because, in the framework of transferring provision of the telecommunications service from the Ex-National Telecommunications Company to private licensees, the Decree 1801/1992 stipulated that the Office of Judicial Observations from that state company will pass to depend on SIDE, with the end to fulfil the said requirements of the judges.
27) That, for the rest, it isn’t worth missing from the view of the legislator who, in establishing in article 3 of Law 25.873 the responsibility of the state for damages and prejudices that might come about from third party observations and utilizations of the obtained information, has recognised that the system implemented of reception, origin and registry of communications might not respect the minimum guarantees demanded for such drastic interference in the private sphere of the individual.
Preceding decision of second instance
English machine translation of the decision of second instance - Quote: "Here it is recognised that the purpose of the Act 25,873 and its regulatory decree is to combat the scourge of crime, but the truth is that this can not be done at the expense of making everyone in the nation hostage to an inquisitorial system that all telecommunications can be captured for possible remote viewing".