In these past years, we have been witnessing how all this new technology introduced into our society has change the way we behave and interact with each other; this has made us reconsider the legal foundations of our judicial system. It is important to stop our daily chores for five seconds and reflect on this because most of these new behaviors overrun our individual legal sphere; upsetting our human rights.
Let me start our brief analysis by citing the discoveries diffused last week; as a result of an investigation made by the The New York Times and The Guardian; which asserted that the Chinese government is installing a surveillance app in the tourist mobile devices. Just like many other violations to human rights, this action was justified by the violator using the ¨because of national security¨ flag. The mission of this spyware is to collect all the information that is stored, sent and received by the device; which may be considered as a threat to the national sovereignty of China. Since this is very ambiguous, it opens the door for the government to gather all the personal data of the user, including their contacts, text messages, pictures, calendar entries, call logs and everything else. This border crossing policy clearly hurts the human rights … at least in México.
According to the Merriam Webster dictionary the right to privacy refers to the entitlement a person should have to be free from intrusion into or publicity concerning matters of a personal nature. Said the above, even though the Politics Constitution of the United Mexican States does not literally protect our human right to privacy; the constituent of Queretaro did include the main idea of this right in the article number 16th, expressly in the lines that read: no one shall be molested in its person, family, home address, documents or possessions but by virtue of a written order from the competent authority; that establishes and motivates the legal cause of the procedure¨.
These rights are also known as ARCO
Furthermore, in this same topic, our principal legislation deepens into the concept of this right by recognizing other elements that strengthens the idea. We can find that in 1996, the concept of inviolability of the private communications is introduced in our legal system. Just a decade ago, in 2009, a new reform comes in valid; which integrated into the Constitution a right that ensured the citizens the protection of their personal data. This last reform, also included the right to access, rectification, cancelation and oppositions to the release of this data by a third party; these rights are also known as ARCO.
To summarize the ideas discussed so far, let´s recapitulate the five main characteristics of the personality that shape the human right to privacy according to the Constitution: private life, home address, sexual life, phone conversations and honor and reputation.
Mexican authorities were to implement the same border crossing policy as in China
Hence, if Mexican authorities were to implement the same border crossing policy as in China, it will be committing a huge violation of the sixteenth article. They would first have to amend our Constitution, which by the way is a rigid one, making it very hard to modify.
For all the ideas exposed up until this point, we can conclude that even though the society´s struggle for the right to privacy has been harsh; it is far from being over, on the contrary we have a long and new way to go.
With the purpose of heading in the new direction; let me put these simple question on the table: Should the government have access to spy on its citizens privacy arguing national securities causes? Should the government notify the citizen when he or she is being spied for any reason? Which official, institute, secretary or department of the state should have access to spy? How is the government going to guarantee the data will not be misused? Which part of the persons privacy can be subject to spy or will it be everything? In order to not violate the right to no discrimination, what is the criteria they are going to use when deciding to spy on someone´s private life?