opinion

A law against the personal sphere
by Miguel Antonio Bernal

The human right to privacy is a legal asset that we see being trampled today in our country. The war against intimacy has been declared by the representatives of the branches of government that have, with undisguised premeditation, recently approved the law "Which dictates norms for the conservation, protection and turning over of data on users of telecommunications services and adopts other dispositions."

We are faced with a law that raises doubts about the creation of files to be used in future potential criminal cases, at the expense of the principle that everybody is presumed to be innocent, as well as against other accumulated protections of electronic communications as part of one's private life that are offered in the Inter-American Convention and the Treaty on Civil and Political Rights.

Thus, this law contains flaws which conflict with due respect for human rights:

a) It fails from the aspect of foreseeability of consequences, as it permits the solicitation of elements of the communicative processes of telephone and the Internet for purposes of investigations, arrests and trials of all types of crimes. I say that this interference with the right of privacy is unreasonable and disproportionate (by the terms set for in the Inter-American Human Rights Court's rulings in the Santander Tristán Donoso vs Panama and Escher et al vs Brazil cases), as these sorts of intrusions must be reserved for the prosecution, detention and trial of persons linked to the commission of serious crimes. (See Article 11 of the new law.)

b) By conceding jurisdiction to the Public Ministry to solicit information about communications, subject to later control by the courts, it avoids the state's duty to prevent abuses --- that is, when that duty arises the violation of the right to privacy of one's communications has already been consummated. (See Articles 11, 12, 13 and 14.)

c) Notwithstanding even if we avoid the lack of a duty to prevent that's inherent in after-the-fact control, it's apparent that the formula used is reminiscent of the Colombian model of posterior control expect that it doesn't mention that country's 36-hour deadline within which this control must be given. (See Article 12.)

d) The above becomes particularly grave if one considers the text of Panama's Constitution, where it says that that interferences in the privacy of communications (including elements that belong to the communications processes of telephony and the Internet) can only be done with a judicial warrant.

e) Panama's Supreme Court of Justice has determined, in the July 17, 2007 ruling on the Arquímedes Sáez case, that interferences with private communications may only be ordered by the courts, and the Public Ministry, not being a judicial authority, is barred from exercising this sort of jurisdiction.

So where does this law leave the "inviolable sphere of situations and circumstances that are the exclusive interest of the person and those close to them?"