Policies aimed at fostering digital government processes are gaining traction in Latin America, at local and regional levels. While these initiatives can streamline access to public services, it can also make them less accessible, less clear, and put people's fundamental rights at risk. As we move forward, we must emphasize transparency and privacy guarantees during government digital transition processes.

Regional Approach to Digitalization 

In November, the Ninth Ministerial Conference on the Information Society in Latin America and the Caribbean approved the 2026 Digital Agenda for the region (eLAC 2026). This initiative unfolds within the UN Economic Commission for Latin America and the Caribbean (ECLAC), a regional cooperation forum focused on furthering the economic development of LAC countries.

One of the thematic pillars of eLAC 2026 is the digital transformation of the State, including the digitalization of government processes and services to improve efficiency, transparency, citizen participation, and accountability. The digital agenda also aims to improve digital identity systems to facilitate access to public services and promote cross-border digital services in a framework of regional integration. In this context, the agenda points out countries’ willingness to implement policies that foster information-sharing, ensuring privacy, security, and interoperability in government digital systems, with the goal of using and harnessing data for decision-making, policy design and governance.

This regional process reflects and feeds country-level initiatives that have also gained steam in Latin America in the last few years. The incentives to government digital transformation take shape against the backdrop of improving government efficiency. It is critical to qualify what efficiency means in practice. Often “efficiency” has meant budget cuts or shrinking access to public processes and benefits at the expense of fundamental rights. The promotion of fundamental rights should guide a State’s metrics as to what is efficient and successful. 

As such, while digitalization can play an important role in streamlining access to public services and facilitating the enjoyment of rights, it can also make it more complex for people to access these same services and generally interact with the State. The most vulnerable are those in greater need for that interaction to work well and those with an unusual context that often is not accommodated by the technology being used. They are also the population most prone to having scarce access to digital technologies and limited digital skills.

In addition, whereas properly integrating digital technologies into government processes and routines carries the potential to enhance transparency and civic participation, this is not a guaranteed outcome. It requires government willingness and policies oriented to these goals. Otherwise, digitalization can turn into an additional layer of complexity and distance between citizens and the State. Improving transparency and participation involves conceiving people not only as users of government services, but as participants in the design and implementation of public polices, which includes the ones related to States’ digital transition.  

Leveraging digital identity and data-interoperability systems are generally treated as a natural part of government digitalization plans. Yet, they should be taken with care. As we have highlighted, effective and robust data privacy safeguards do not necessarily come along with states’ investments in implementing these systems, despite the fact they can be expanded into a potential regime of unprecedented data tracking. Among other recommendations and redlines, it’s crucial to support each person’s right to choose to continue using physical documentation instead of going digital.

This set of concerns stresses the importance of having an underlying institutional and normative structure to uphold fundamental rights within digital transition processes. Such a structure involves solid transparency and data privacy guarantees backed by equipped and empowered oversight authorities. Still, States often neglect the crucial role of that combination. In 2024, Mexico brought us a notorious example of that. Right when the new Mexican government has taken steps to advance the country’s digital transformation, it has also moved forward to close key independent oversight authorities, like the National Institute for Transparency, Access to Information and Personal Data Protection (INAI).

Digitalization and Government Use of Algorithmic Systems for Rights-Affecting Purposes

AI strategies approved in different Latin American countries show how fostering government use of AI is an important lever to AI national plans and a component of government digitalization processes.

In October 2024, Costa Rica was the first Central American country to launch an AI strategy. One of the strategic axes, named as "Smart Government", focuses on promoting the use of AI in the public sector. The document highlights that by incorporating emerging technologies in public administration, it will be possible to optimize decision making and automate bureaucratic tasks. It also envisions the provision of personalized services to citizens, according to their specific needs. This process includes not only the automation of public services, but also the creation of smart platforms to allow a more direct interaction between citizens and government.

In turn, Brazil has updated its AI strategy and published in July the AI Plan 2024-2028. One of the axes focuses on the use of AI to improve public services. The Brazilian plan also indicates the personalization of public services by offering citizens content that is contextual, targeted, and proactive. It involves state data infrastructures and the implementation of data interoperability among government institutions. Some of the AI-based projects proposed in the plan include developing early detection of neurodegenerative diseases and a "predict and protect" system to assess the school or university trajectory of students.

Each of these actions may have potential benefits, but also come with major challenges and risks to human rights. These involve the massive amount of personal data, including sensitive data, that those systems may process and cross-reference to provide personalized services, potential biases and disproportionate data processing in risk assessment systems, as well as incentives towards a problematic assumption that automation can replace human-to-human interaction between governments and their population. Choices about how to collect data and which technologies to adopt are ultimately political, although they are generally treated as technical and distant from political discussion. 

An important basic step relates to government transparency about the AI systems either in use by public institutions or part of pilot programs. Transparency that, at a minimum, should range from actively informing people that these systems exist, with critical details on their design and operation, to qualified information and indicators about their results and impacts. 

Despite the increasing adoption of algorithmic systems by public bodies in Latin America (for instance, a 2023's research mapped 113 government ADM systems in use in Colombia), robust transparency initiatives are only in its infancy. Chile stands out in that regard with its repository of public algorithms, while Brazil launched the Brazilian AI Observatory (OBIA) in 2024. Similar to the regional ILIA (Latin American Artificial Intelligence Index), OBIA features meaningful data to measure the state of adoption and development of AI systems in Brazil but still doesn't contain detailed information about AI-based systems in use by government entities.

The most challenging and controversial application from a human-rights and accountability standpoint is government use of AI in security-related activities.

Government surveillance and emerging technologies

During 2024, Argentina's new administration, under President Javier Milei, passed a set of acts regulating its police forces' cyber and AI surveillance capacities. One of them, issued in May, stipulates how police forces must conduct "cyberpatrolling", or Open-Source Intelligence (OSINT), for preventing crimes. OSINT activities do not necessarily entail the use of AI, but have increasingly integrated AI models as they facilitate the analysis of huge amounts of data. While OSINT has important and legitimate uses, including for investigative journalism, its application for government surveillance purposes has raised many concerns and led to abuses. 

Another regulation issued in July created the "Unit of Artificial Intelligence Applied to Security" (UIAAS). The powers of the new agency include “patrolling open social networks, applications and Internet sites” as well as “using machine learning algorithms to analyze historical crime data and thus predict future crimes”. Civil society organizations in Argentina, such as Observatorio de Derecho Informático Argentino, Fundación Vía Libre, and Access Now, have gone to courts to enforce their right to access information about the new unit created.

The persistent opacity and lack of effective remedies to abuses in government use of digital surveillance technologies in the region called action from the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR). The Office of the Special Rapporteur carried out a consultation to receive inputs about digital-powered surveillance abuses, the state of digital surveillance legislation, the reach of the private surveillance market in the region, transparency and accountability challenges, as well as gaps and best-practice recommendations. EFF has joined expert interviews and submitted comments in the consultation process. The final report will be published next year with important analysis and recommendations.

Moving Forward: Building on Inter-American Human Rights Standards for a Proper Government Use of AI in Latin America

Considering this broader context of challenges, we launched a comprehensive report on the application of Inter-American Human Rights Standards to government use of algorithmic systems for rights-based determinations. Delving into Inter-American Court decisions and IACHR reports, we provide guidance on what state institutions must consider when assessing whether and how to deploy AI and ADM systems for determinations potentially affecting people's rights.

We detailed what states’ commitments under the Inter-American System mean when state bodies decide to implement AI/ADM technologies for rights-based determinations. We explained why this adoption must meet necessary and proportionate principles, and what this entails. We highlighted what it means to have a human rights approach to state AI-based policies, including crucial redlines for not moving ahead with their deployment. We elaborated on human rights implications building off key rights enshrined in the American Convention on Human Rights and the Protocol of San Salvador, setting up an operational framework for their due application.

Based on the report, we have connected to oversight institutions, joining trainings for public prosecutors in Mexico and strengthening ties with the Public Defender's Office in the state of São Paulo, Brazil. Our goal is to provide inputs for their adequate adoption of AI/ADM systems and for fulfilling their role as public interest entities regarding government use of algorithmic systems more broadly. 

Enhancing public oversight of state deployment of rights-affecting technologies in a context of marked government digitalization is essential for democratic policy making and human-rights aligned government action. Civil society also plays a critical role, and we will keep working to raise awareness about potential impacts, pushing for rights to be fortified, not eroded, throughout the way.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2024.