rights versus crime twenty years of wiretapping and digital

8/11/2019 Rights Versus Crime Twenty Years of Wiretapping and Digital

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Global Information Society Watch 2014

AssociAtionforProgressivecommunicAtions(APc)

AndHumAnistinstituteforcooPerAtionwitHdeveloPingcountries(Hivos)

GLOBAL INFORMATION

SOCIETY WATCH2014Communications surveillance in the digital age


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PERURights versus crime: Twenty years of wiretapping and digitalsurveillance in Peru

Introduction

The systematic monitoring of citizens by the state inPeru was revealed in 2000, after the collapse of thesecond administration of ex-president Alberto Fuji-mori (1995-2000). Fujimori resigned in his last yearin office, after a network of government espionageand corruption was revealed. This included videorecordings of secret meetings and alleged commu-nications surveillance conducted and managed bypresidential advisor Vladimiro Montesinos, workingwith the National Intelligence Service (SIN). Thissystematic surveillance by the state resulted in thedissemination of private information, recordingsand videos of public officials, journalists and manyother influential people.

These events sparked the beginning of the de-bate around the purpose of surveillance in Peru,

and the violation of the right to private communica-tions by state agencies and private entities andwhat legislation could be developed to regulatethis. This discussion is ongoing, with more cases ofcommunications interception being revealed.

From state surveillance to industrialespionage and hacking

The Constitution of Peru establishes the privacy ofcommunications as an individual right and does notdifferentiate between digital or non-digital com-

munications. Nevertheless, respect for freedom ofexpression and association and non-discrimination,which are basic rights, have been violated manytimes due to the governments interest in track-ing opposing opinions, the actions of politicalopponents, industrial competition or even religioustendencies and sexual preferences.

It is generally recognised that the state hasthe tools for monitoring, and can do so within alegal framework, with judicial approval, includingin cases of suspected terrorism and crime. But, for

instance, Peruvian legislation on cyber crime hasalso included a modification on what is permissible

when it comes to tapping telephones, a change thathas been met with criticism.

Over the past 15 years there have, as a result,been several cases of communications violations,both by the state and individuals. Among the mostnotorious cases: the surveillance by the Fujimorigovernment; industrial espionage that revealedthe corruption of officials in influence peddling andlobbying; the dissemination of private telephoneconversations of electoral candidates; and the pub-lication of the email communications of government

ministers by journalists.

The Fujimori government, the intelligence services,

and the use of the military for surveillance (2000)

The history of the regime of Alberto Fujimori, presi-dent of Peru during two consecutive terms (between1990 and 2000), is stained by the corruption that ledto his resignation. His presidential adviser VladimiroMontesinos had a starring role in this story full ofespionage and extortion, and even kidnapping andmurder.

Montesinos effectively became the chief of in-telligence services, where he allegedly created agiant spy network using army personnel and moni-toring equipment, intercepting communicationsand recording videos of public officials, journalists,media entrepreneurs and other influential people.

Industrial espionage: The case of Business Track

(2008)

Authorities found some 60,000 intercepted emailsby journalists and politicians opposed to the gov-ernment in the computer systems of the generalmanager of the private security firm Business Track,Manuel Ponce Feijoo, a retired Navy officer. Evi-dence of the wiretapping of officials and businessexecutives was also discovered. The most relevantcase was called Petroaudios(the so-called oil re-cordings), in which telephone conversations aboutillegal negotiations involving state oil concessionsthat would benefit a foreign company (NorwaysDiscover Petroleum Company) were recorded anddisseminated. Following this discovery, the illegal

Red Cientfica Peruana and Universidad Peruanade Ciencias AplicadasFabiola Gutirrez and Jorge Bossiowww.rcp.pe, www.upc.edu.pe


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practices of a private company engaged in system-atic espionage came to light.1

Communications violation: Monitoring

a candidate for the mayoralty of Lima (2010)

On September 2010, during the election campaignfor the mayoralty of Lima, a television programmebroadcast an audio clip of a private telephoneconversation between Christian Peoples Partycandidate Lourdes Flores Nano and a former con-gressman from her party, Xavier Barron. In theconversation, Flores said that she no longer caredabout the election, after the results of a preliminaryvoter poll in which her opponent, Susana Villarn,took the lead for the first time. I am not interestedin this election crap, she said in the extracts thatwere released, prompting her precipitous decline invoter preferences. This audio recording was a deter-

mining factor in her loss of the election.

National Security: Violation of a ministers official

emails by LulzSec/Anonymous Peru (2013)

The hacker group LulzSec Peru, collaborators ofAnonymous, obtained and shared emails from theMinistry of Interior, including the minister, WalterAlban. Digital communications about issues such asthe tracking of regional opposition leaders, the secu-rity of officials and prosecutors investigations wereintercepted. The hackers said their intention was to

prove the vulnerability of state information systems.

The weak line: Private versus public

After the dismantling of the National Intelligence Ser-vice (SIN) following numerous cases of secret videorecordings being made and communications moni-tored during the Fujimori regime, a new intelligenceagency called the National Intelligence Directorate(DINI) was created. A couple of years ago, it came tolight that the budget for the DINI was increased in or-der to monitor public network repositories like social

networks, forums or general topic lists, arguing thatthe use of these online platforms meant that this wasnot a violation of private communications.

However, this surveillance is on the borders ofwhat is considered private and public, and raises theproblem of the legality of monitoring the public in gen-eral without any suspicion of a crime being committed.

The surveillance by the DINI sparked a debateabout access to and protection of information, asit cannot be argued that it has been done with alegitimate interest in mind if this were the case,

1 Romero, C., & Vliz, A. (2010, April 26). Tena 53 mil emailshackeados. La Repblica. www.larepublica.pe/26-04-2010/tenia-53-mil-emails-hackeados-0

the law would have been followed and a court orderwould have been obtained. Although the increasein the budget allocated to the DINI is to monitorpublic networks, if they already do so illegally, thesuspicion that they perform other types of commu-nications surveillance looms with great force.2

The legal frameworkLegislation relating to cyber crime in Peru is a rela-tively new category under the Penal Code. In 2000,provisions relating to espionage or computer hack-ing (Article 207-A) and computer sabotage (Art207-B), that were within the scope of crimes againstprivate property, were included. However, it becameapparent over time that these did not respond tothe needs of protection required when it came to in-formation and communications technologies (ICTs).

In 2011, when the bill for the Cybercrime Law

was presented to Congress, its original versionmeant that the police could access digital commu-nications, and legislators felt that it did not respondproperly to the right to privacy of communications.They argued that this right extends to all types ofcommunication, and the bill had to be corrected.

The state filed a new version of the draft law,which was finally approved. However, the approvedlaw was also questioned, because it prohibits, on theone hand, the creation of databases using any publicinformation (which contradicts the law on access to

information), and, on the other hand, leaves legisla-tive gaps regarding telephone interceptions.

Cybercrime Law

On 22 October 2013 the new Cybercrime Law3wasapproved. This law was inspired by the BudapestConvention on Cybercrime4 although Peru is not asignatory to this international convention.

The new law punishes those who, using ICTs,introduce, delete, copy, spoil, alter or suppressdata, or render data inaccessible for criminal

purposes; those who engage in digital espionage,including telephone interceptions; engage in sexualharassment; and distribute child pornography.

Regarding telephone interceptions, the penaltyfor this offence has been increased to a maximumof eight years when it comes to classified or se-cret and confidential information. It also includesaggravating circumstances when the offence com-promises national security, or when it is performedby public officials or those linked to these officials.

2 Interview with Erick Iriarte A., lawyer and founding partner ofIriarte & Asociados (www.iriartelaw.com), 24 May 2014.

3 Law No. 30096 of 2013.

4 conventions.coe.int/Treaty/EN/Treaties/Html/185.htm


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But the Cybercrime Law violates at least twoother rights:

Access to information

The law establishes a sentence of three to six yearsfor persons found guilty of capturing digital informa-tion from a public institution, such as what is spent

on social programmes, and complements this withnew data to analyse the information (such as when ajournalist analyses public data from different sourc-es, creating a new data set). Critics of this legislationunderstand that at this point it contradicts the Lawon Transparency and Access to Public Information.5

Article 6 of the law on access to informationmakes it a criminal offence to use data without per-mission, which means that anyone who accessespublic information without authorisation and cre-ates a database where this information could be

disseminated would be guilty of a crime. In this way,access to public information and the right to free-dom of information are limited.6

This observation sparked the debate amongpoliticians, civil society and experts and prompteda review. Article 6 was repealed in March 2014.

Information freedom

The amended article regarding telephone intercep-tions included in the Cybercrime Law goes as faras to punish any kind of monitoring, regardless of

the purpose. This makes the privacy of communica-tions so strict that the monitoring of public officialsin order to secure transparency is also prohibited,affecting citizens freedom of information and theirability to conduct research in the public interest.The exemption that applies to the media, and whichrefers to an exemption of the penalty when investi-gating or monitoring issues of public interest, wasnot included in the amendments of the law passed.

Conclusions

Mass surveillance by the Peruvian state has notbeen proven in recent years; however, it is knownthat the national intelligence services are treading athin line of legality through their use of surveillancetools to monitor citizens publicly shared informa-tion, which according to the norm is a crime too. Theincrease in the budget for the DINI suggests thatthey could be doing more than that. Ideally, theseresources should be directed to using surveillanceas a tool for protection and security but we do notknow yet know if that is the case.

5 Law No. 27806 of 2002.

6 Interview with Roberto Pereira C., lawyer and legal consultant atthe Press and Society Institute (IPYS) (www.ipys.org), 14 May 2014.

Regarding the legal framework for surveillance,the biggest problem is not the law itself, but its in-terpretation and application. This creates the needfor specialised training for legal practitioners, pros-ecutors and law enforcement authorities in technicalterms and standards and technological methods re-lated to the violation of communications in all aspects.

The Cybercrime Law appears to affect freedomof information legislation, which guarantees trans-parency in the public sector. The Cybercrime Lawalso impacts negatively on other genuine rights thatallow society and individuals to exercise democraticcontrol and play an oversight role. The fact is thatwhat one law defends, the other blocks.

Undeniably, the many cases of interceptionpushed the approval of the Cybercrime Law, in thepursuit of legal mechanisms to curb such crimes.However, the result reflects little analysis on the

topic, poor legal specifications, little precision inthe application of the law, and the lack of a con-scious review of comparative international lawsthat could have contributed to making it more ef-ficient and appropriate.

Action steps

The debate on how to improve the Cybercrime Lawshould continue. Specifically, it should include theclause on media exemption in order to keep trackof what is considered in the public interest. In this

sense, it is also crucial to protect the right to freedomof information and investigation, which serves as amechanism for citizen control in governmental affairs.

Given the uniqueness of the environment inwhich it must be applied, the Cybercrime Law couldbe reviewed by legal practitioners and comparedto similar laws in other countries. It would also beadvisable to add some kind of standard glossary ofterms as an interpretive guide.

Civil society organisations that are frequentlymonitored should place more importance on the

need to encrypt information and have reliablesecurity mechanisms for their communications. Se-curity protocols and devices can be used to preventcommunications being violated. Internet serviceproviders (ISPs) must guarantee their users reliableand safe communications, since it is very likely thatintermediaries are used in surveillance.

Finally it is clear that the opposition, civil soci-ety and the media cannot give up fighting for theirrights to privacy and to exercise their oversight ofpublic affairs. The state will always try to find ways

to control its citizens, and Peruvians already knowthat surveillance is just one of these ways.

rights versus crime twenty years of wiretapping and digital

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