Communications Surveillance in Colombia: The Chasm between Technological Capacity and the Legal Framework

Last year, media outlets revealed that the National Police of Colombia would operationalize the Single Platform for Monitoring and Analysis (Plataforma Única de Monitoreo y Análisis, or PUMA), through which it would be able to intercept “what is spoken, written or sent from e-mails, Facebook, Twitter, Line, Viber, Skype, and, in short, any type of communication undertaken via the internet.” More recently, last February, Se- mana magazine revealed that the military was reviewing e-mails and chats of those involved in the peace talks in Havana, Cuba.

In both cases, the government put its spin on the news. In the first case, the government presented PUMA as nothing more than the replacement of an older system, and stressed that it would be subject to legal controls. In the second, the Colombian president quickly announced the formation of a commission to develop the country’s policy on cybersecurity and cyberdefense.

Nonetheless, the underlying issues remain unsolved. What is, in the end, the technical capacity of PUMA? Is it possible to review anyone’s e- mails? Can the military access someone’s chat history? Is intercepting a phone call the same thing as intercepting internet traffic?

Although new scandals regarding state intelligence emerge periodically in Colombia, the state never clarifies how intelligence works in practice or what controls exist for its exercise. Meanwhile, as time moves on, intelligence schemes grow more sophisticated along with our cell phones and computers.

An analog rotary-dial telephone is as obsolete as “crocodile cables” used to intercept calls. Nonetheless, as the market facilitates the process of obsolescence and the incorporation of new massive technologies, it tells us little about the devices that are simultaneously developed to monitor individuals.

Technological changes tend to alter long-established assumptions regarding the reach of specific rights. Privacy is arguably the right that faces the most challenges in the digital environment. Yet regulatory and jurisprudential lacunae persist in terms of how technology affects the exercise of fundamental rights.

The cases of PUMA and the military’s spying on peace negotiators occurred soon after Colombia’s adoption of its new Intelligence Law, which, in theory, corrects previous irregularities and aligns with modern surveillance. But is this truly the case? Do we have a regulation that pre- serves national security without compromising citizens’ privacy and freedom of expression, among other rights?

The goal of this book is to examine the Colombian legal and jurisprudential framework regarding communications surveillance in light of today’s technologies. Phrased in the form of a hypothesis, the purpose is to demonstrate how intelligence-related laws and jurisprudence fail to ensure that potentially affected rights remain intact.

To test this hypothesis, I address several aspects of the country’s Intelligence Law that I selected somewhat arbitrarily: the interception of communications, surveillance of the electromagnetic spectrum, and ac- cess to user data. This last point, which alone merits its own study, is developed as a complement to the first two.

The book is divided as follows: The first chapter explains, from a technical point of view, the technologies that we use to communicate and that are used to monitor us. The second chapter explores the normative framework for communications surveillance. The third offers a compara- tive look at communications interception. Finally, the fourth chapter synthesizes the findings of the first three chapters in an effort to offer several conclusions.

 

Internet Governance and the Struggle for Control: New Study from CELE

There is no one-click solution for governing the Internet. The debate about the management of the network is, above all, a struggle for control. Network neutrality, critical resources, infrastructure, copyright enforcement, and online privacy, among others, are topics that evolved from arrangements of power and influence –quite distributed and decentralized in some cases, less so in others. And while private actors had the grip in these arrangements, governments are increasingly exerting influence over the Web.

A new study by the Center for Studies on Freedom of Expression and Access to Information at the University of Palermo, Buenos Aires, suggests that Internet governance, rather than just being the host of institutions and multilateral formulas, is a contested space for the control and management of this unique technology. It also argues that the multi-stakeholder model, often upheld by civil society as the key to unlocking a more equitable and human rights-abiding approach to policymaking for the global Internet, may not be the silver bullet that some want it to be.

This is an excerpt from a blog entry published in Global Voices. Continue reading here

Public Interest and Commercial Media: Digital Trends

Public service broadcasters face an ambiguous situation in both the course and the aftermath of digitization. While digitization opens an opportunity for them to broaden and strengthen their public mission by expanding content, adding new services, and boosting penetration, it also threatens their very existence: it is likely to increase and dramatically enhance the commercial offer, reinforcing the case against using taxpayers’ money to produce information via public service broadcasters. Digitization requires, moreover, substantial investments (infrastructure, equipment, training), which, in the case of public service broadcasters, means more public funding—an unpopular cause to advocate.

For commercial media, meanwhile, digitization has accelerated consolidation, cross- ownership deals, and vertical integration. Far from being an opportunity for increased diversity and plurality, digitization seems to reinforce traditional problems in media markets.

This chapter explores developments in four main areas. First, it explores how public interest provisions are present in digital switch-over policy. Second, it analyzes how regulation ensures a role for public service broadcasters in the digital era. Third, the chapter describes the changes that commercial media have undergone in the digital transition. Finally, the chapter maps models of regulation of news online, which takes the form of general or specific regulation. 

The following is the chapter I wrote for the book 'Digital Journalism: Making News, Breaking News', an overview of all the topics and countries covered by the Open Society Foundations' Mapping Digital Media Project (the post above is an edited version of the introduction). 

Mobile Internet in Colombia: Challenges and Opportunities for Civil Society

The objective of this document is to examine the process for auctioning spectrum for mobile services, a process known as the “4G Auction", which the Colombian government began in 2012 and concluded in June 2013. The idea is to take advantage of this window to take a closer look at public policies related to the mobile internet in Colombia, the context in which those policies are being made, and the institutions in charge of making them.

The paper is structured as follows: Chapter One describes three main indicators of mobile services (internet penetration, market composition, and quality); Chapter Two looks at public policy, including key elements related to institutional design and the implementation of regulations; Chapter Three describes the auction itself, emphasizing the debate that occurred in Congress and the conditions in which it unfolded; Chapter Four looks critically at civil society participation in the process; and Chapter Five closes with a number of considerations and conclusions related to the future work of civil society.

Download the document here.

Internet Governance Series: Stop Porn, Stop Piracy – the Limits of Intermediary Liability

In any given day in front of our computer we use all sorts of services: first, we access the global network through an Internet Service Provider (ISP). And once online, we update our Facebook status, post a blog entry in WordPress, tweet an interesting article on Twitter, search a topic in Google, listen to music through Spotify…

These companies, known generally as online intermediaries, are in an ideal position to control users’ behaviour –something of great interest to governments. If a state wants to prevent or deter any given online activity (child pornography, copyright infringement), there one straightforward strategy: use these intermediaries as a proxy for enforcement. This is what is commonly known as the gatekeeper strategy.

Published in the London School of Economics Media Policy Project. Continue reading here

Looking north is looking back: the negative impact of the DMCA. The notice-and-takedown procedure and Technological Protection Measures

The Free Trade Agreement (FTA) between Colombia and the United States includes, among others, two commitments to extend copyright protection in the digital environment: creating a mechanism to remove allegedly infringing material from the Internet and prohibiting by law to circumvent technological measures that protect such material. And even though these commitments shelter equally to both the United States and Colombia, only the latter should do something to fulfill them, since both points are in force in a U.S. law and were included in the FTA in very similar terms. Such law is the Digital Millennium Copyright Act (DMCA), promoted by Bill Clinton’s administration and issued in 1998.

Based on the DMCA provisions, the Colombian government has recently boosted bills on each point. Thus, in 2011, the government filed an initiative that included the creation of a content removal mechanism. It was the original “Lleras Law,” which ended up being shelved months later. Afterward, in April 2012, President Juan Manuel Santos asked Congress to fast-track processing a law that included matters in regard to the circumvention of technological measures. However, the Court declared it unconstitutional on procedural grounds; hence, the government filed again a similar text in Congress last May.

The DMCA is unsuccessful model, as long as it is understood by successful a balanced copyright model. In the United States are countless voices constantly pointing out
the harmful effect of this law. Even a group of academics, entrepreneurs, NGOs and members of technology companies launched a formal campaign to call for reforming it. Thus, the DMCA’s problems are not an exclusive subject for hackers and activists.

Continue reading here. This is the English summary of a document originally published in Spanish (available here). 

 

 

The unresolved debate in Colombia about copyright protection on the Internet. The case of ‘Lleras Law’

On Monday April 4, 2011, the former Minister of Interior and Justice, German Vargas Lleras, arrived to the Senate Secretariat accompanied by a group of artists and a with draft law under his arm. “Those who continue using piracy, take back, because from here forward the theme of imprisonment and penalties will be applied rigorously,” said Vargas Lleras.

Most of the draft law (16 out 19 articles) envisaged the creation of an extra-judicial mechanism to remove from the Internet those contents -videos, music, text- uploaded or transmitted by users and that allegedly infringe copyright.

The threat of imprisonment for pirates as referred by Vargas Lleras was in one of the final articles of the proposal. Rather than creating a new offense, what it really did was to repeat -if anything, more specifically- the existing definition under the Colombian Penal Code.

Continue reading here. This is the English summary of a document originally published in Spanish (available here).