Latin America

Digital rights and the pandemic: Learning from perspectives and strategies from Latin America

Introduction

Problematic solutions were implemented by different states as part of their health strategies to control the spread of COVID-19. Research carried out by different organisations since the first months of the pandemic in Latin America raised serious concerns related to potential privacy violations, lack of transparency, surveillance, excessive processing of personal data in contact monitoring and tracing applications, and associated risks to other fundamental rights.^[1] In trying to combat the pandemic, states placed their trust excessively in technological tools, without carefully assessing potential human rights violations.

In a context where techno-optimism is the dominant discourse, issues such as the increase in exposure notification apps, the use of facial recognition technologies, mandatory data sharing, automation and artificial intelligence (AI) have provoked a lot of debate in Latin America over the past two years. Likewise, debates on internet access policies have also been foregrounded in this period.

In this report we examine how digital rights advocacy priorities and advocacy actions in Latin America have shifted due to the pandemic. We identify several new terrains for engagement, including the human rights consequences of public interest technologies, the usefulness of litigation in protecting rights, and the need to rethink internet access policies in the region.

Latin America and pandemics in a glimpse

As the World Health Organization (WHO) declared a global pandemic on 11 March 2020, Latin American governments started to impose different measures to both prevent the spread of the virus (like quarantines, face masks and other sanitary restrictions) and inform the population on its advance, sometimes relying on technological tools or surveillance systems (such as automated exposure notifications,^[2] facial recognition, mandatory data sharing, etc.). Alongside the deployment of health-related technologies by state and private parties, digitisation strategies were developed or implemented in areas such as security, education, social protection and work. However, these measures lacked robust strategies to ensure human rights were respected and vulnerable communities protected.

While governments had already been digitising many of their services, the pandemic, in several cases, forced the transfer of activities online, from the purchase of food and basic supplies to access to and participation in educational, labour and cultural activities. With the rush to lead their populations into a new "normal", little attention was given to the development of connectivity and digital literacy policies that allowed equality in the enjoyment of rights. At the same time, the widespread use of surveillance technologies was not followed by proper safeguards and discussions, raising concerns and gaining attention from the regional digital rights community.

At the other extreme, communities such as Indigenous groups reinforced their historical demands for access to the internet as a basic right that would ensure their safety through access to information and services during quarantine. In Colombia^[3] and Brazil^[4] they went to courts to force the state to protect their rights to health, life, food security, personal and collective security, water and a healthy environment. In Brazil, the Federal Supreme Court gave interim orders to the federal government to create an effective and urgent public policy to support Indigenous peoples due to the new coronavirus.^[5] One of the recommendations made by the National Council of Justice was to immediately install “communication infrastructure (internet) in villages and surveillance posts to support inspection operations and monitoring of invasions in the area.”[6]

In the following section, we present examples of how civil society has dealt with the issues of digital rights during the pandemic in Latin America in the face of the identified threats.

Technologies and human rights: An updated look over the past two years

Evidenced-based knowledge production to inform policy making

A series of problems were identified in the way mobile applications and other systems were implemented in Latin American countries as part of their respective health strategies during the pandemic.^[7] A broader study led by the Al Sur Consortium analysed 16 apps and identified problematic points, such as: inequality in access to the internet and technologies; the existence of different applications in the same country; a lack of certainty about whether their use was voluntary; a lack of detail about the security measures adopted in the applications; a reluctance to make the apps’ source codes open and transparent; few guarantees of effective control over the use of personal data submitted by users; and a lack of clarity about which institutions could access the data and under what circumstances and conditions.^[8] The study concluded that certain aspects need to be considered when the use of technologies imposes risks to the exercise of fundamental rights. It showed that several applications did not respect the principle of legality in the material sense, insofar as limitations to rights were imposed through decisions of an executive power or through administrative decisions. The authors also pointed out that they found no evidence that states had carried out human rights impact assessments prior to the implementation of the technologies.^[9]

In this scenario, different Latin American civil society organisations issued recommendations so that the main problems could be corrected. Al Sur recommended paying better attention to inequalities in connectivity; human rights impact assessments to ensure responsible decision making by governments and companies; the need for good data governance; and public transparency in the selection and deployment of the technologies.^[10] Data Privacy Brasil also issued a series of principles and recommendations for the legitimate use of personal data in the fight against the pandemic.^[11]

Advancing data protection through strategic litigation

While Argentina tries to oblige citizens to use their National Identity Document (DNI) in a hybrid version of the National Census of Populations, Households and Dwellings to be carried out this year, civil society resists. The Vía Libre Foundation filed a habeas data appeal,^[12] arguing that the incorporation of the DNI in the census could affect the rights to privacy and self-determination in terms of personal data, and conflicted with the Argentine personal data protection legislation. They argue that by including the DNI in the census, personal and sensitive data would be collected, which violates the protection of personal data, since the collection of certain types of information depends on express and informed consent and cannot be mandatory. The contradiction was generated because the census is mandatory, so in practice, it would also be mandatory to include the DNI information. In this case, the National Institute of Statistics and Censuses finally decided to remove the question about the DNI from the census form.^[13]

In Brazil, besides the approval of the Brazilian Data Protection Law, two cases judged by the Brazilian Supreme Court represent important privacy developments. The first court action followed Provisional Measure 954 in April 2020, which made it mandatory for telecommunication operators to share personal data with the Brazilian Institute of Geography and Statistics. The Brazilian Bar Association challenged the measure in a constitutional lawsuit. In May, the Supreme Court decided that it was unconstitutional and determined that personal data protection was a fundamental right.^[14] The second case questioned a unified database with citizens’ information created through Decree 10.046 in 2019. A detailed analysis produced by Coding Rights with the support of Derechos Digitales^[15] drew attention to the database and led to the filing of an action of unconstitutionality against the decree. A decision is still pending, but several civil society organisations are acting as amici curiae in the case.^[16]

In Mexico, the Mexican National Institute of Transparency, Access to Information and Protection of Personal Data challenged in a constitutional lawsuit the amendment to the Federal Telecommunications and Broadcasting Law that created the National Register of Mobile Telephony Users (PANAUT).^[17] The amendment compelled the Federal Telecommunications Institute to install, operate, regulate and maintain the PANAUT, as well as obliging concessionaires (entities that have been granted concessions to operate) and authorised telecommunications service providers to collect various personal data, including sensitive data, of users. Civil society also presented a brief as amicus curiae in this case.^[18]

Understanding and resisting surveillance technologies

Solutions based on artificial intelligence (AI) can create serious violations of human rights. Facial recognition systems, for example, can suffer from biases that result in discrimination and barriers to the effective enjoyment of the rights of certain people belonging to historically marginalised groups. Also, the growing use of video surveillance systems and the use of biometric data represent a new challenge to the privacy of individuals that must be addressed from a multistakeholder and multidisciplinary perspective, adapting advocacy strategies to the evolution of technologies.

When used for surveillance purposes, such technologies reproduce the biases of social exclusion, in addition to threatening the rights to dignity, due process, presumption of innocence, privacy, and freedom of expression and association, among others. The use of these technologies has also been identified as one of the great challenges to the “affirmation of gender and for a broadening of the scope of citizenship.”^[19] Since the start of the pandemic, the use of software to spy on journalists and human rights activists has resulted in strong criticism and complaints in Mexico^[20] and El Salvador.^[21]

Civil society organisations adopted several strategies to deal with the various problems related to facial recognition and other surveillance technologies that increased during the pandemic. First, they have studied the use of these technologies by Latin American states and called for strict democratic controls, which include the criteria of legality, necessity and proportionality, and public supervision, at regional^[22] and local^[23] levels. In addition, various types of legal challenges have taken place in different countries, with examples of this being the strategic litigation seen in Brazil^[24] and Argentina.^[25] Civil society also worked with parliamentarians to propose bills that would prohibit the use of mass surveillance technology.^[26] Another strategy was to urge the Inter-American Human Rights System to act, denouncing the use of surveillance technologies and their impact on freedom of expression during the pandemic at a hearing^[27] and asking for the system to react to the use of spyware.^[28] International civil society organisations also spoke out against the use of software to spy on human rights defenders and journalists.^[29]

In recent years, several Latin American countries have developed national AI strategies in an effort to set basic principles for the use of the technology. However, some of the first initiatives to develop legislation on AI, such as a new bill in Brazil,^[30] have been severely criticised by civil society. They argue that it is important to take advantage of instances that allow for public participation and input, on the one hand to improve public consultation processes and, on the other hand, to influence public policies that bring countries closer to a use of AI that respects human rights.

Exposing inequalities in access to the internet

In Brazil, studies produced by the Brazilian Institute of Consumer Defence (Idec) and Instituto Locomotiva show that the current reliance on mobile internet access by the majority of people is precarious and restricts basic rights by limiting access to education, health, financial and social assistance programmes such as emergency aid during the pandemic. This led to dissatisfaction among people and exacerbated existing vulnerabilities.^[31]

Also in Brazil, two cases demonstrate the vulnerability and inequality in internet access during the pandemic. First, the president vetoed a law that attempted to guarantee access to online education during lockdowns. After great pressure from civil society, the National Congress overrode the presidential veto to implement public policies and give students access to the internet.^[32] In the second case, the president vetoed the creation of internet hotspots in Indigenous communities. However, this veto was reversed by the National Congress, and the law was enacted in August of the same year – again, after enormous pressure from civil society.^[33]

Other countries faced similar challenges. Ecuador, for instance, tried to close several public centres for internet access that are key for connectivity in rural areas – the so-called “infocentros”.^[34] The measure would have affected the internet access of four million people,^[35] but the decision was suspended after pressure from popular movements and other institutions.^[36]

In Colombia, the problem of inequalities in access to the internet is due to the lack of infrastructure in different geographic regions, as well as the high cost of data in relation to the minimum wage.^[37] The country nevertheless made a positive change to overcome this situation by enacting a law that declared the internet an essential and universal public service.^[38] In Argentina, through the Decree of Necessity and Urgency No. 690/2020, ICTs and access to telecommunications networks were also considered essential and strategic public services. However, the measure was later suspended by the judiciary,^[39] a move which was criticised by civil society.^[40]

Conclusion

Throughout this report, we have briefly identified the trends in the use of technology in the context of the COVID-19 pandemic – especially measures taken by governments – as well as the strategies adopted by civil society organisations in the face of the different threats to the enjoyment of human rights that resulted from their implementation. As technologies evolve and their use becomes more common, it also becomes necessary for civil society to further develop an agenda that takes into consideration the various impacts such technologies have on society, including an increase in inequalities for particularly vulnerable groups that risk being left behind.

The technological measures implemented by states as part of their health strategies to mitigate the effects of the COVID-19 pandemic proved to represent risks not only to privacy and informational self-determination, but also to a vast number of economic and social rights. As the threat from the pandemic changed with the introduction of vaccination and restrictions were relaxed, we can reflect and learn from the diverse experiences in different countries over the past two years. But doing this we can prepare a renewed advocacy agenda that pays closer attention to those technologies that were either already being implemented before the pandemic or were implemented because of it. It is particularly concerning that the health emergency served as a justification for the digitisation and datafication of information and services in several areas, as well as for the acquisition of surveillance technologies that are increasingly used for other purposes. On the other hand, it seems to be extremely relevant for civil society to refocus on the issue of inequalities in internet access in communities where the digital gap is prominent.

This new scenario makes it necessary to rethink strategies to ensure respect for human rights, particularly in the digital sphere. In this regard, we highlighted the findings of evidence-based regional research and strategic litigation seen in different countries. Due to the increase in techno-authoritarianism in several states, research and developing recommendations for improvements and writing joint statements are very useful tools for civil society and can be complemented by other strategies. For example, these include filling habeas data and collective amparo[41] processes in constitutional matters, actively participating in the discussions at the Inter-American Human Rights System and presenting amicus curiae briefs. All of this should be done through the collaboration of human rights organisations flourishing in Latin America.

Action steps

Considering what was discussed in this report, the following are our recommendations to improve advocacy on issues related to the use of technology, from a human rights perspective:

• Continue to report and document cases where the use of technologies potentially poses risks to human rights.
• Strengthen collaboration between organisations in research and advocacy against inequalities in internet access, especially in areas and population groups with higher levels of vulnerability.
• Working with other organisations, lodge complaints against infringements of human rights at the relevant institutions, in the shortest time possible.
• Form and strengthen coalitions for strategic litigation on digital rights.
• Actively participate in the sessions and cases of the Inter-American Human Rights System and when possible, participate as amicus curiae.
• Increase participation in national legislative processes through creating collective submissions from civil society.