Freedom of Expression on the Internet and
privacy of communication
The right to freedom of expression has found in the Internet a unique tool for incrementally extending its enormous potential to broad sectors of the population. The Internet is transforming and is a medium where people in the entire world can express their opinions, while simultaneously significantly increasing their capacity to access information, it promotes pluralism and the dissemination of information.651 Similarly, freedom of expression in the digital sphere presents enormous challenges, the IACHR and Office of the Special Rapporteur for Freedom of Expression were interested in learning about these challenges and follow up on them during the visit to Honduras. According to the information learned during the on-site visit, in March of 2014 Honduras reformed the Framework Law on the Telecommunications Sector [Ley Marco del Sector de Telecomunicaciones].
According to the information received, the Telecommunications and Information Technology Investment Fund [Fondo de Inversión de Telecomunicaciones y Tecnologías de la Información] (FITT), was created as a strategy to achieve universal access to the Internet and Communication and Information Technology (ICT) services, as well as bridging the digital divide. The aforementioned Fund will finance the promotion and development of telecommunications projects and application in ICTs. It is tasked with bridging the digital divide and guaranteeing equal opportunity for beneficiaries, through subsidized projects and/or projects that “will be financed in order to strengthen growth in neglected areas or communities”652 and the country as a whole. Likewise, it shall promote access to quality telecommunications services, in a timely manner, efficiently and at accessible and competitive prices, for the inhabitants of the country who do not have sufficient resources to access them.653
According to the most recent performance report on the telecommunications sector, during the final quarter of 2014 advances were made. Specifically, the number of subscribers to fixed Internet reached 159,276, which, according to the report, represents a 21.24% growth from the previous quarter. The number of subscribers to mobile Internet reached 1,350,109, a 19.73% growth from the previous quarter. The number of Honduran Internet users increased by 16.4% from 2012 to 2013.654
The IACHR and the Office of the Special Rapporteur for Freedom of Expression take note of the advances to ensure universal and effective enjoyment of the right to freedom of expression online. In that regard, it encourages the State of Honduras to continue adopting positive measures of inclusion, or bridging the digital divide in a progressive manner; and to continue efforts on the development of plans to ensure the infrastructure and services tend to increasingly guarantee universal access.
Without prejudice to these notable advances, the Commission received information from different actors of civil society regarding the prejudicial impact the implementation of the Special Law on Interception of Private Communication [Ley Especial para la Intervención de las Comunicaciones Privadas]655 would have on the excercise of the right to privacy and freedom of expression in the country.656
The IACHR observes that the law, passed in 2011, has the goal of establishing a “legal framework for rules of procedure in the intervention of communications, to be used rarely in investigations, thus making it a tool to combat conventional crime and especially organized or non-conventional crime, guaranteeing the human right to communication, without more restrictions than those provided for by law” (Art. 1).
According to the law, communications by any means or transmission may be intercepted.657 In order to intercept the “Office of the Public Prosecutor, the National Police, or any other competent authority” shall obtain a court order. The judge shall resolve the petition immediately, not to exceed 4 hours, and said authority shall continue “the investigation, processing and persecution of crimes requiring the use of this special technique, taking into account the seriousness, usefulness and appropriateness of the measure in regards to the crime” (Articles 7, 8, and 16). Furthermore, this law created the Communication Interception Unit [Unidad de Intervención de Comunicaciones], which falls under the National Investigation and Intelligence Directorate of the National Defense and Security Council and shall be the body tasked with executing the interception court order (Art. 33).
Moreover, Article 39 of the aforementioned law requires “company[ies], institution[s], or any other natural or juridical entity that offers communications services”, the obligation to “keep the data on all connections of each user for the period of 5 years”. Data includes all contacted telephone numbers, length and time of the call, and if on a cellular telephone, the location from where the call is made, answered or a message is sent.658
The IACHR notes with concern, that the aforementioned Article 39 does not clearly define who is responsible for data retention on the connections, or the type or category of data to be preserved. The clear definition of those subject to data retention and the type of data is crucial given the number of communication service providers and access to Internet and information actors, as well as the complexity of the data according to the type of service provided. The Act is not clear on the obligations of personal data retention by Internet service providers; and those are precisely the platforms used to transmit electronic communication, like email, social networks and messaging services.
The aforementioned is even more serious, since the Act does not clearly define the types of crimes subject to these methods for their investigation and prosecution. It establishes one of the longest and most onerous time limits (5 years) in the region, and does not provide for destroying the preserved data at the end of the retention period. To that extent, the Office of the Special Rapporteur for Freedom of Expression of the IACHR has expressed concern over the adoption of policies that obligate Internet and telecommunications service providers to retain the communications metadata for historical surveillance, in contrast to selective retention mechanisms clearly defined by law. In that regard, the Special Rapporteurs of the UN, OSCE, OAS and African Commission have affirmed that:
requirements to retain or practices of retaining personal data on an indiscriminate basis for law enforcement or security purposes are not legitimate. Instead, personal data should be retained for law enforcement or security purposes only on a limited and targeted basis and in a manner which represents an appropriate balance between law enforcement and security needs and the rights to freedom of expression and privacy.659
The Commission reiterates that all possible effects on the freedom of expression and right to privacy shall be truly necessary and proportionate to the legitimate goals of a democratic State. Freedom of Expression is invaluable for democracy and individuals, that is why it enjoys special protection in both national constitutions and the American Convention on Human Rights.
In that regard, the IACHR reiterates a call to the state of Honduras to review its legislation keeping international standards and principles in mind in light of our report on Freedom of Expression and the Internet and Resolution 68/167, The right to privacy in the digital age, adopted by the United Nations General Assembly, wherein it calls upon the States to review:
their procedures, practices and legislation regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law.660
CHAPTER 7
SITUATION OF PERSONS DEPRIVED OF LIBERTY
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