news

Cops, prosecutors say they need telecom registry law, critics warn of dangers
by Eric Jackson

What if a foreign government tips off Panamanian authorities that a man living in Paitilla is coordinating the activities of a particularly vicious international criminal organization from this country, but can't or won't produce a warrant or provide sufficient evidence to justify an arrest in this country?

Our police and prosecutors may want to stake out the man's home to see who comes and goes. It may want to track his movements.

They also might want to tap his phone, or at least figure out with whom he is talking. They might also want to similarly monitor his email communications. 

However, there are practical problems in the way of doing some of these things. Panama has some 3.9 million cell phones, 3.5 million of which are the prepaid kind for which there is no billing system on which to readily base a directory. Sales records at the companies that provide cell phone service could attach names to many of those devices, presuming that these records were kept in any retrievable form. Similarly, there is no registry of which computer connected to the Internet belongs to whom, although Internet Service Providers would, for billing purposes alone, have a lot of this information on hand. 

Thus prosecutors and law enforcement agencies have for some time longed for a registry. They want a tool that lets them react to a reasonable suspicion that the kingpin of a feared cartel is operating under their noses by readily identifying the specific electronic communications media that he uses, and if they can meet the requirements of judges and prosecutors, apply for a warrant to eavesdrop on the messages sent and received through these devices.

Or else the cops might stop a suspicious looking man --- he's young, he's black, he has tattoos and body piercings, this is Curundu --- walking down the street, and, notice a tattoo that bears something of a resemblance to a design popular with a street gang. Seizing his cell phone, taking down the numbers of those whom he called, identifying the people at those numbers, rounding up those individuals and repeating the process with the numbers they find on their cell phones, the next morning grandstanding cops and prosecutors would be in a position to hold a press conference with trophy shots for the TV cameras, where they would claim a huge victory in the war against vicious gangs. (Never mind that all that they just did was round up a circle of friends who like to get together on weekends and put the horrors of where they live out of their minds with a few hours of beer and hip-hop music.)

Or maybe, despite all of the best-laid plans and good intentions, the Panamanian economy has gone into free fall, there has been a wave of strikes and all of a sudden Dr. Juan Jované has risen from the status of a fringe leftist protest candidate who was illegally excluded from the 2009 ballot to the clear front runner in the 2014 presidential race. As a matter of "national security," an administration largely of, by and for big business wants to nip this threat in the bud by intercepting the communications of the candidate and his circle of advisors and acting to frustrate the insurgent campaign's plans. To do this, an operative with SPI first consults the government's directory of cell phones and Internet connections. This having been declared a matter of "national security," the courts will be left out of the process.

Or perhaps Ricardo Martinelli is not the man people think he is, and wants to intercept the cell phone calls and emails of supermarket chains that compete with his Super 99 stores to get an advantage in business competition. Were that  his intention, wouldn't it be convenient to be able to identify and intercept the business messages of the folks who run El Rey, Riba Smith and El Machetazo?

(Let us give Martinelli the benefit of the doubt unless and until he forfeits it by his actions --- but let us also acknowledge that we don't know the people who will succeed Martinelli or their ethical standards. And let us also realize that the most probable reason for the 1971 disappearance of Father Héctor Gallego was that the Esperanza de los Campesinos cooperative that he organized in Santa Fe, Veraguas, provided competition for a store owned by one of General Omar Torrijos's relatives.)

Martinelli's Cabinet Council has drafted a proposed law that would require cell phone service companies to compile and keep a registry of who owns which cell phone and of the calls that are made from each phone. The law would also require Internet service providers to make such a registry of the computers which they connect to the web and the people associated with them, and of the traffic on those computers.

The original Martinelli proposal, which Minister of Government and Justice Minister José Raúl Mulino says is being modified, varied from a "national security decree" passed but never fully implemented during the Torrijos administration in that the former president would have required all Internet cafes to identify and register their customers and keep data on which connections these customers made on the computers they rented. The Torrijos decree belied the mindset of a spoiled dictator's kid whose only real job outside of politics was as shift manager at a friend of his father's McDonald's franchise: he thought he could snap his fingers and make things happen, notwithstanding that as a practical matter his plan would have instantly driven all Internet cafes out of business if it had been implemented.

One of the reasons why the original Martinelli plan is being modified is also practical in nature: it would require a registry to be retroactive, but it turns out that some of the companies involved have not kept information in a form that would allow them to comply with that mandate. Add the easy lending or transfer of cell phones, plus people using computers registered to someone else at Internet cafes or otherwise, and one begins to appreciate the operational limitations of what the government would like to do. Mulino told La Estrella that in the next draft retroactivity will be stricken and that the technical objections that people raise will be taken into account in the process of the law making its way through the legislature.

However, the debate is not being waged on technical grounds. It's being waged against a political background littered with ominous milestones. Some of the better known ones are:

• Earlier this year, the Inter-American Human Rights Court condemned Panama in the case of one Santander Tristán Donoso, an attorney at law. In 1996 he had a telephone conversation with one of his clients and soon thereafter the notorious pro-corruption Attorney General José Antonio Sossa played a tape of it at a gathering of lawyers and then for an audience that included the Catholic archbishop of Panama. Tristán complained that Sossa had improperly tapped his phone and then Sossa brought criminal defamation charges against Tristán. (The exact provenance of the tapes has never been explained.) The court avoided the defamation issue because in the meantime Panama had amended its laws to prevent government ministers from bringing criminal defamation charges, but held that Tristán's privacy and attorney-client privilege had been violated, and that Sossa, on behalf of the Panamanian government, had unfairly impugned the attorney's reputation.

• In the early days of the Endara administration, tapes of the telephone calls made from his Miami jail by ex-dictator Manuel Antonio Noriega were played for entertainment at Panama City parties attended by members of the Christian Democratic Party, then a part of the governing coalition which was running the Ministry of Government and Justice more or less as a party fiefdom. The provenance of those tapes was never explained or investigated, but the circumstances raised suspicions of corruption and arrogance in both the US and Panamanian governments of that time.

• The centerpiece of the late 1990s impeachment trial of the late Supreme Court magistrate José Manuel Faúndes were two surreptitiously taped telephone calls, wherein the jurist negotiated ex parte with an attorney for a Colombian alleged drug dealer whose case was before a lower court to allow that suspect to be let off in exchange for a $20,000 bribe. The provenance of the first tape is mysterious and long rumored to have been from a US government agency. The second tape comes from a wiretap authorized by a "warrant" signed by a PRD legislator of that time, one Miguel Bush, who is possessed of a rather odious reputation in his own right. The nation heard Faúndes in the act of selling out his public trust, but then a majority, but not a sufficient super-majority, voted to convict the magistrate and he was acquitted. (A controversial maximum age for public employees law was passed to keep Faúndes from going back to his job on the court.)

• On October 11, 1968, there was a military coup leading to a dictatorship that lasted for more than 21 years. Panama's largest political party, the Democratic Revolutionary Party (PRD) celebrates that coup on its party flag and symbols. During the course of the dictatorship more than 100 opposition activists were killed, mostly by being abducted, held and tortured in secret locations, extrajudicially executed and having their bodies disposed of in secret. Some of the dictatorship's disappearances took place by way of throwing the political prisoners into the ocean from helicopters hovering high above. Wiretaps were an integral part of the dictatorship's modus operandi. When, after the United States abandoned its support for the dictatorship and many of Panama's business leaders began to express their opposition to the Noriega regime, members of the country's social and economic elites --- including, it is said, one Ricardo Martinelli --- found their electronic communications being monitored by the government.

Thus it should not be surprising that civil libertarians would sound the alarm about this particular bit of legislation, and they have. Law professor, attorney and activist Miguel Antonio Bernal said that "the contents of this proposal attack the heart of the right to privacy." Transparency International's Angélica Maytín voiced concerns that the Martinelli administration was headed toward the abuses of previous governments. Rubén Castillo, the president of the Panamanian Business Executives Association (APEDE) expressed concerns about possible abuses and called for a national public debate on this or any other proposal that could affect the right to privacy.

The criticism also came from within the PRD. Former Panama City mayor Juan Carlos Navarro opined that the proposal violates civil rights and, instead of advancing anti-crime efforts, would just add to the government's bureaucracy and inefficiency. National Ombudsman Ricardo Vargas suggested that the proposed law is a sliver of a much broader topic that should be addressed as a whole, taking a whole gamut of law enforcement concerns and civil liberties issues into account.

Martinelli, meanwhile, says that his intentions are misunderstood. "I complained a lot when I was [a target in] the wiretapping campaign and would be the last person who would propose or support a law having to do with this." But he said that pre-paid cell phones are being used in kidnappings and robberies and that a registry is needed to fight this sort of crime.

Mulino also rejected allegations that the right to privacy would be violated, and said that not only is the original draft being modified, but that part of the process may well be the repeal of the earlier Torrijos administration decree.

The nation's top prosecutor, Attorney General Ana Matilde Gómez --- one of Bernal's old law students --- said that as an initial reaction, without having read the Cabinet Council's draft, she likes the idea of a cell phone and Internet connection registry. She argued that law enforcement can't fall behind the technology that criminals are using.