March 13, 2009
Privacy and Intimacy, Cross Action

The Argentine Supreme Court declared the unconstitutionality of rules which authorized the intervention and observation of telecommunication transmissions without judicial warrant, and the keeping of users’ traffic data for ten years. Recognition and admissibility of the class action.

On February 24, 2009 the Argentine Supreme Court ruled in favor of plaintiff, Mr. Ernesto Halabi, sustaining that sections 1 and 2 of Law No. 25,873 and its regulatory Decree No. 1563/04 are unconstitutional, as considered that its application may infringe the rights of the telecommunication users established in articles 18 and 19 of the Argentine Constitution.

Said regulations impose the telecommunications service providers to have the necessary technological and human resources to intervene and allow observation by the Federal Intelligence Secretary of their users’ transmissions. Furthermore, they also oblige telcos to keep records of their users’ personal data, address and of the communications made and received by them (“traffic data”) for a period of ten years. The main purpose of said regulations is to facilitate law enforcement investigation and intervention in organized crime, especially in the case of abductions.

The Supreme Courts’ rationale was based on the following grounds:

(i) the law does not set any specific parameters under which telecommunications’ intervention and observation might be performed;

(ii) it is difficult to separate within the traffic data the private content of the registered communications; and

(iii) the storage of the information would involve the risk of its misuse, for being stored in companies’ data bases and not in the secured data bases of the Intelligence Secretary.

The Court ascertained that these regulations authorize possible arbitrary or abusive intrusion on the intimacy and private life of the individuals involved in those communications, therefore violating constitutional rights established in articles 18 and 19 of the Argentine Constitution.

Moreover, the Supreme Court considered the notion of class action. Though foreseen in the Constitution since 1994, its procedure has not yet been regulated. Nevertheless, the Court set a procedural framework for this kind of standing, and concluded that plaintiff’s claim was within said framework.

The Court determined that as plaintiff’s interests embodied those of all telecommunications’ users, the ruling shall apply to all individuals in the same factual circumstances.

This judgment constitutes a milestone on the judicial protection of collective constitutional rights in Argentina.

For further information on these regards, please contact Francisco Gutiérrez, Marcelo Eduardo Bombau or Carlos Osvaldo Gruneisen.

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