In a disappointing decision, Mexico’s Supreme Court rejected a challenge to Mexico’s Ley Telecom data retention mandates and its lack of legal safeguards. The challenge, or writ of amparo—a remedy available to any person whose rights have been violated—was filed by R3D.mx on behalf of a coalition of journalists, human rights NGOs, students arguing that Articles 189 and 190 of Ley Telcom violate the privacy rights of Mexican citizens. The articles compel the country’s telephone operators and ISPs, to retain a massive amount of metadata — including the precise location of its users — for 24 months.
In a statement, our colleagues at Red en Defensa de los Derechos Digitales (R3D.mx), who filed the case, declared that the court “missed an historic opportunity to establish a precedent for the privacy and safety of all users of telecommunications services.”
They remain hopeful, however, that the full decision, which has not yet been published, might still put some constraints on how the government obtains the data. Carlos Brito, R3D’s Advocacy Director, told EFF:
[A]ccording to the statement that the Court has published, several of our arguments in favor of democratic controls for surveillance did influence their final decision, but we’ll only know for sure in a few weeks.
R3D remains most concerned that the ruling will still allow real-time access to location data by law enforcement without judicial oversight or a warrant.
It’s not the end of the road for those fighting data retention or uncontrolled government access to personal data. Now that R3D.mx and their colleagues have exhausted potential challenges under domestic law, they intend to file a lawsuit against the Mexican State before the Inter-American Court of Human Rights. This new litigation will be lengthy, but if successful, it will set a positive precedent not only for Mexico but for the entire region. Europe’s highest courts have already determined that data retention is a “wide-ranging and particularly serious interference” with fundamental rights; even with this setback, we hope that the Americas’ human rights system will come to the same conclusions.
