Luis Fernando García of R3D contributed to this post.
Earlier this year, digital rights activist were concerned that a comprehensive telecoms reform bill would slip through Mexico’s congress unnoticed. However, this bill quickly became one of the most talked about and controversial issues among Mexican internet users. Online protests and street demonstrations, including a massive human chain in Mexico City, raised public awareness to the threats hidden within this bill, and have had an impact: the Senate’s vote was expected for late April, yet public pressure against the bill postponed the debate to a special session of Congress expected sometime during the next few weeks.
Increased surveillance to internet ‘fast lanes’
The bill expands government surveillance powers in nearly every direction, and even allows widespread network discrimination. As it stands, the bill must be amended. R3D, Access, Derechos Digitales, and other partners have campaigned and written to Mexico’s Congress warning of the bill’s many problems.
Dangerously, the bill would allow police to access user data without a court order, even real-time and location information, and to shut down mobile and internet networks all without ever going in front of a judge.
The Peña Nieto Government has defended the new bill’s anti-net neutrality provision, saying they want to establish rules identical to those suggested earlier this year by the U.S. Federal Communications Commission (FCC), including “pay to play” and “fast lanes” for the biggest content providers.
In response to public pressure, the government of President Enrique Peña Nieto and his party, the Institutional Revolutionary Party or PRI, was forced to publicly say they would modify the bill to eliminate the provisions that were “misinterpreted.” The leader of the ruling PRI party in the Senate, Emilio Gamboa, said clauses allowing the government to block internet and phone signals would be stripped from the bill. However, the latest version of the bill included only cosmetic changes and almost all the threats to digital rights remain.
Mexico’s government is now trying to discredit the bills’ critics, accusing them of being paid by Carlos Slim, the billionaire CEO of Telmex – the formerly state-owned Mexican telco – and America Movil, Latin America’s largest mobile provider. The telecoms monopoly that Slim oversees was targeted by a reform bill passed last year. That bill created a new regulatory body, the Federal Telecommunications Institute (IFT – replacing the Commission COFETEL). The IFT has already labeled two of Slim’s companies “dominant,” a first step toward subjecting them to special regulation. This new bill, however, seems better designed to quell free expression of users than to expand internet access and competition in Mexico.
On surveillance, the new bill expands nearly all government powers without placing necessary safeguards.
The bill imposes 24-month data retention requirements on telcos. The practice of retaining data in order to stop serious crime or terrorism has come under scrutiny in Europe, where the Court of Justice of the EU recently invalidated the bloc’s Data Retention Directive, one of the first mandatory data retention regimes in the world. We should note that the Court found no “credible demonstration” that data retention is necessary to stop terrorism, or that its benefit is proportional to its violation of the fundamental right to privacy. Access opposes mandatory data retention and urges the Mexican government to remove this provision.
The bill also fails to protect users against surveillance in multiple ways: no judicial warrant is needed for mobile phone location tracking; it does not include sufficient safeguards such as independent supervision, notification, or transparency are provided; and the bill expands the agencies authorized to access retained data and use location tracking without a warrant (arts. 189, 190, 191).
Worryingly, the bill allows authorities to shut down telecommunications signals when and where they deem it “critical for public safety.” This is a vague standard that opens the door for abuse and shutdowns to curtail public demonstrations, violating people’s rights to freedom of expression and association. This provision is made even worse by the fact that the government doesn’t need to get judicial approval for a communications blackout.
Still time for fixes
Fortunately, public pressure has succeeded in getting a particularly bad clause removed from the bill – one allowing authorities to block internet content, services, or apps (article 145).
In another positive sign, opposition parties from both the political left and right have promised to defend digital rights – so there are many opportunities for improvement.
It’s likely the government plans to avoid further public anger by passing the bill while many are distracted by the World Cup. However, R3D along with Access and Derechos Digitales are campaigning and preparing actions to mobilize users to fix this dangerous bill during this crucial time.