“Telephone Interception Law” – A Further Threat to Communications Privacy

By Honduras Accompaniment Project

1/11/2012 Marvin Palacios, Tegucigalpa. Wire-tapping, which police and military intelligence agencies have been carrying out for years to intercept the communications of civil society organisations and the political opposition, was legalised by the Honduran Congress in December 2011. However, according to officials working for Porfirio Lobo’s regime, the law was passed as a way of combating common criminality, organised crime and drug-trafficking.

The Telephone Interception Law (Ley de Intervenciones Telefónicas), telephone spying, or the  “The Eavesdropping Law” as it is commonly known was defended by Juan Orlando Hernández, President of the National Congress, as an essential part of a package of measures to combat indiscriminate criminality affecting Honduras. Supporters of this new measure argue that many people in Honduras are involved in tapping or intercepting communications and, in this situation, the State is at a disadvantage, despite the fact that current legislation allows telephones to be tapped if an application is made to the Office of the Attorney General (Fiscalía General) and a warrant issued by a judge.
Article 223 of the Criminal Procedure Code (Código Procesal Penal), which deals with telephone interception, states that the judge, at the request of the Attorney General’s Office or the prosecution, may order, through a formal well-founded decision, the recording of telephone, computer or any other similar type of communications made by the accused or any other person directly or indirectly associated with the crime under investigation. 
The article adds that the judge, when issuing the ruling, shall take into account the seriousness of the crime being investigated, and the usefulness and proportionality of the measure. Surveillance consists of identifying and recording the origin of the phone-call or e-mail message, its destination, or both, or finding out and recording the content of the messages.     
In the warrant permitting interception, the judge will specify who will carry it out. It will also stipulate that the interception cannot last more than 15 days, although this period may be extended by the judge, at the request of the Attorney General or the prosecution.  
Once the recordings have been made, they shall be handed over exclusively to the judge who ordered them within 5 days of the deadline for the interception. Only the judge will be privy to the contents of the recordings. If these are related to the crime under investigation, he or she may order that they be transcribed to be presented as evidence in the legal proceedings. Those responsible for making the recordings or transcribing them shall keep their contents secret and if they fail to do so, shall be prosecuted. The recording of a call without fulfilling the requirements laid down in this article shall not be admissible as evidence.
 
An attempt to persecute dissidents and opposition leaders
 
For Joel Almendárez, president of the Colegio de Pedagogos de Honduras (Honduras Teachers’ College), this measure, together with others recently adopted, are “a ‘combo’ of laws against the people of Honduras, and what they’re going to do is start seeking out all sorts of leaders, such as those of the political opposition, to start listening to everything they’re talking about, who they’re talking to, and what they’re saying”. 
 
Almendárez continued, “it represents an assault on freedom of expression to which everyone has a right because, with this, people are going to keep silent so that nobody can hear anything. This telephone surveillance is Juan Orlando Hernández and Porfirio Lobo Sosa’s sinister political scheme which, I imagine, is being masterminded by a South American country such as Colombia, which is advising on security matters”.
 
Ivannia María López, a lawyer with CDM (Centro de Derechos de Mujeres – Women’s Rights Centre) responded by saying that she does not agree with the “The Eavesdropping Law” because the Criminal Procedure Code lays down certain procedures so that some investigations can be conducted in that way.
“But we think that it’s wrong and totally abusive because all of us have the right to privacy, which must never be violated” argued López.
 Asked whether this law was simply legalising a longstanding practice in Honduras, López stated that it has taken place, but that it was necessary to analyze the objective of this new law. “I think it will go beyond legalising what’s already been done, and it will include identifying people who are enemies or who don’t agree with their ideas, to determine what to do with these people – perhaps initiate legal proceedings against them or, as has always happened, disappear those who don’t think like them, and I think that this is one way of doing it”.
“Nor do we agree with e-mail interception because it is a means of communication that we use. It is illegal and violates the Constitution”, stated the lawyer.
In this regard, experts in cyber interception, better known as ‘hackers’ increased their illegal activities following the coup d’état in Honduras. The e-mails of staff from Cofadeh (Comité de Familiares de Detenidos Desaparecidos en Honduras – The Committee for Relatives of the Detained and Disappeared in Honduras) and other civil society organisations opposed to the violation of constitutional order were hacked.  
In Honduras it is being said that ‘The Eavesdropping Law’ will even allow conversations between people, both in public and private places, to be recorded. The decree was adopted in a closed session of Congress on 8 December 2011.
The law will allow justice officials to intercept calls, e-mails, text messages, and essentially any form of communication channelled through platforms, whether public or private.   
Telephone spying will be the responsibility of the UIC (Unidad de Intervención de las Comunicaciones – Communications Interception Unit) which will be staffed by experts in this kind of work. The UIC will report to the Attorney General’s Office, Special Section on Organised Crime (Fiscalía Especial Contra el Crimen Organizado).
In Congress, some representatives such as presidential candidate Yani Rosenthal stated that the full range of telecommunications companies will be obliged under the decree to enforce its provisions, and are liable to prosecution for failure to do so. Rosenthal explained that phone, internet and other companies will have to keep customer records and archive information in case that authorities require it. An important point was that anyone who practised surveillance without the authorisation of a judge would be prosecuted. He stressed that this represented significant progress in the fight against phone extortion.   
Under this law, officials authorised to intercept calls who leak the phone-taps and companies who give out the information gathered in ways contrary to the spirit of the law will be prosecuted under official secrets legislation.
Anyone who destroys, alters or corrupts information obtained through the interceptions will be prosecuted, as will anyone who tries to hack into the UIC’s databases, operating systems or computer records.
  
Under  Article 6 of the ‘Eavesdropping Law’, communications interception is a special investigation technique consisting of procedures through which a communication effected through any type of transmission, broadcasting or reception of signs, symbols, written signs, images, sounds, e-mails of any nature, by wire, radio-electricity, optical media or other media, electromagnetic systems, telephone, radio, telegraphy, computer or electronic media, or of a similar or analogous nature, as well as communications which are effected through any media or type of transmission, are listened to, picked up, recorded, saved, or observed by the authorities, without the consent of its owners or participants.
When the persons under investigation, the defendants, or the Attorney General’s Office require linkage analysis for their allegations and make use of outside experts, these must be formally approved by the appropriate supervising judge, in a hearing at which all the parties, previously notified, must be present. The maximum period for interceptions shall be three months, extendible for three more periods.
 
An assault on civil liberties and privacy
Experiences of this type on the American continent show that the measure encourages the uncontrolled spying by the state on its citizens.
In the case of Peru during President Alberto Fujimori’s administration, phone surveillance was in the hands of the intelligence service controlled by Vladimiro Montesinos, a ‘shady character’ accused of human rights violations. There, phone-tapping law was justified as a way of combating the Sendero Luminoso (Shining Path) guerrilla group.
However, in the end the ex-President of Peru himself and Vladimiro Montecinos were the victims of their own surveillance as interviews and meetings were filmed showing the corruption of the Fujimori regime, with money amounting to millions paid to prominent Peruvian figures, for blackmail, bribery and buying people off.  
In Colombia, ex-President Alvaro Uribe is facing charges after the courts found that the DAS, the former Colombian intelligence service, intercepted telecommunications, in particular the phone calls of journalists, judges, public prosecutors and politicians opposed to his mano dura (hard hand) policy. In response to this scandal, the current president, Juan Manuel Santos, was forced to disband the DAS and replace it with a new intelligence service.
 
In the United States in 2008, the government passed a phone-tapping law, updating the Foreign Intelligence Surveillance Act of 1978, which did not cover new communications technology such as mobile phones, the internet and e-mail.
 
In defiance of the American Civil Liberties Union, the United States Senate legalised the phone-tapping which the government implemented following the terrorist attacks of September 11, 2001 with the adoption of the ‘Phone-tapping Law’.
At that time, the then president, George Bush stated that with the adoption of the measure “it is now easier to protect US citizens and it is now possible to know what the terrorists are saying and what they are planning”. Among other provisions, the initiative authorises interception of US networks, regardless of whether they are American or foreign, without having to obtain a warrant.  
 
The approved measure protects telecommunications companies from multimillion lawsuits from people alleging that the interceptions violate US privacy laws. 
The law represented a political victory for Bush, who demanded the adoption of the law, arguing that its rejection could result in the loss of ‘key leads’ for avoiding new attacks. However, the measure has attracted strong criticism from defenders of civil liberties. 
The American Civil Liberties Union (ACLU) declared the law ‘unconstitutional’ and ‘a blatant assault on civil liberties and the right to privacy’. “This legislation will give the government unfettered and unchecked access to innocent Americans’ international communications without a warrant” stated Anthony Romero, ACLU’s executive director, in a press release. 
At that time, Barack Obama, then the presidential candidate for the Democratic Party, voted in favour of the measure while his rival, the Republican John McCain, was not present at the vote because he was on the campaign trail in Portsmouth, Ohio, according to Congressional sources.
 
 
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Friendship Office of the Americas
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