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EPIC --- Privacy and Human Rights Report 2006

Bolivarian Republic of Venezuela

Constitutional Privacy Framework

The Constitution of Venezuela has been written in a manner designed to protect human rights.[5763] The interest of the people guides the constitutional text, in which, according to Articles 28[5764] and 48,[5765] every person has the right to access and manage information on himself, contained in official or private records; to request to the competent court for the update, correction or destruction of any records that are erroneous or unlawfully affect the petitioner's right; and to ensure the secrecy and inviolability of his private communications, regardless of their forms. The Venezuelan legal framework, however, presents inconsistencies with respect to the inclusion of these concepts in other legal instruments. One of these is the Postal Law, in force since 1928, which does not contemplate the inviolability and confidential character of private correspondence.

Articles 60[5766] and 143[5767] of the Constitution refer specifically to data processing and privacy in electronic communications. Every person has the right to know the status of procedures in which he has a direct interest, as long as this does not violates national security or interferes with ongoing law enforcement investigations. Article 60 establishes that every person has the right to his or her honor, private life, intimacy, self-image, confidentiality and reputation.

The Constitution sets out the freedom of expression as a human right, inalienable, free and plural, and without any type of censorship. It also includes a special provision to allow and promote access to means of communication by children and adolescents (Articles 57 and 58). These articles prohibit anonymity, war propaganda messages, as well as those that show religious intolerance. The right to information persists even during "states of exception," during which the right of citizens to "true, opportune and impartial information without censorship" will not be suspended.[5768]

The Constitution also integrates knowledge, communication and creation within the concept of Cultural and Educational Rights (Articles 98, 101, 110 and 124)[5769] in which it considers Internet databases and public libraries to belong to the public interest. The Internet is considered a public service. These articles also reflect an interest in building a legal framework to protect indigenous languages and traditions (e.g., the registration of patents or copyrights concerning indigenous patrimony is prohibited), as well as other folkloric values, authorship and scientific and technological innovations. In the same way, the norms set forth in the Law on Social Responsibility for Radio and TV (the implementation of a section of Article 110) promote the necessity to protect Venezuelan values above foreign values in the programming of mass communications, as well as implement measures ensuring that persons with hearing disabilities will be able to enjoy programming.

Statutory Rules Related to Privacy

The main laws that regulate telecommunications, data and privacy are: Telecommunications Privacy Protection Law; the Organic Law for Telecommunications; Data Message and Electronic Signature Law; Special Law against Information Crimes; Social Responsibility in Radio and Television Law; and Public Function and Statistics Law, which regulates the national statistics system. In the justification for the Proposal for the Organic Law on the Use of Information Technologies in the State, other laws of particular interest are also mentioned, such as the Public Administration Law, the Financial Administration Law, the Organic Tax Code and the Organic Penal Process Code.

The discussion on the first draft of the project of Law for the Protection of Data and Habeas Data (LPDHD) has stopped. This project intended to guarantee and protect personal data stored in archives, registries, data banks and other data information systems, public or private, and provided data subjects with access, correction and deletion rights.[5770]

The Telecommunications Privacy Protection Law establishes protection of the privacy, confidentiality, inviolability and secrecy of communications.[5771] This norm stipulates distinct sanctions for the recording, imposition, interruption or hindering of communications between parties, in an arbitrary, clandestine or fraudulent manner, as well as the installation of instruments aimed destined to record or hinder communications between parties unless through an authorization in compliance with the law. It also sanctions the disturbance of the peace of mind of a party through the use of information obtained through illegal procedures. The norm authorizes the police to carry out necessary surveillance, but limits them to investigation of crimes against the security or independence of the State, and with previous authorization of a judge, as stipulated in the Organic Psychotropic and Stupefacient Drug Law (Ley Orgánica sobre Sustancias, Estupefacientes y Psicotrópicas) as well as in regulations related to kidnapping and extortion crimes.[5772]

The principal objective of the Organic Telecommunications Law, according to its Article 2,[5773] is based upon the defense of previously expressed constitutional principles, which define the right to communication and information, as well as privacy and personal honor, as human rights]. In the same spirit, the Organic Telecommunications Law (LOT) also promotes the implementation of community media. Among other aspects, a third large area of interest of the LOT is the inviolability of personal communications. With respect to service providers, the LOT has created an organization responsible for generating mechanisms for the protection of consumers and users of services, called the National Commission of Telecommunication. This organization also regulates compliance with the Universal Service Standards, measures adopted in the public interest and for the protection of personal data.[5774]

Decree 1204, the Data Message and Electronic Signature Law[5775] (LSMDFE), is the instrument that recognizes the legal validity of signatures and electronic messages.[5776] Although the mechanism has not yet been implemented, two cases[5777] that refer to this law to validate constitutional protection requested via electronic mail have already been presented to the Supreme Court. The Supreme Court made a progressive interpretation of the Organic Law of Constitutional Protection.[5778] It admitted that, based upon the LSMDFE, telegraphic media, electronic mail and the Internet were media of equal probative value. Decree 3335, which partially reforms the LSMDFE with the goal of regulating the accreditation of electronic certification service providers,[5779] entered into force on December 14, 2004. The LSMDFE also recognizes foreign electronic certificates.[5780]

The Special Law against Information Crimes[5781] regulates crimes against information systems, economic property and patrimony, personal privacy and communications, without including spam. Illegal access to systems, interference, signal interception, unauthorized use, sabotage and damage to systems and data, as well as the creation and introduction of viruses are also considered crimes (Article 8). The law considers as crimes: spying, falsification of documents, fraud and unauthorized use of credit cards, etc. It also covers the violation of personal data and information privacy, whether through damage or the unauthorized destruction of another's data in a computer system. The violation of communication privacy is defined as the access, capture, interception, interference, reproduction, modification, detour or elimination of any data message or transmission signal, or third party's communication, as well as the inappropriate disclosure of personal information. Chapter IV deals with crimes against children and adolescents by criminalizing the publication and diffusion of pornography. The law, however, does not regulate "snuff films"[5782] and does not consider them as sexual practices that degrade and violate a woman's honor (Article 77 of the Constitution; the Law on Violence against Women and Family).

On March 21, 2005 the National Telecommunications Commission of the Ministry of Infrastructure (CONATEL), (Comisión Nacional de Telecomunicaciones del Ministerio de Infraestructura) passed the Administrative Resolution No. 572 requiring that all personal data, including complete name, identification card number, home address, fingerprints and signature must be collected from buyers of cellular phones and landlines and delivered to government officials upon official request. It also requires that a registry of all traffic data, including initiating number, called number, duration of call and geographic details be maintained by the carrier.[5783]

Financial and Credit Information

In November 2001, Decree 1526 of the General Law for Banks and Other Financial Institutions (LGBOIF) was enacted.[5784] The law urges that the security of information systems be maintained in order to reduce or eradicate financial crimes, which affect public deposits, as well as develop better services for their customers in dealing with bank transactions. According to the LGBOIF, other organizations, such as the Ombudsman, the Attorney General, and the Institute for Consumer Defense and Education, should be familiar with depositors' complaints. In September 2004, the Ombudsman requested the annulment of Article 192 of the LGBOIF, stating that it was unconstitutional. In the Ombudsman's opinion, the processing of the personal data contained in the Central Risk Information System (SICRI) allegedly "harms the constitutional rights and the collective and extended (difusos) rights of citizens registered in SICRI."[5785]

Major Privacy Cases

In August 2004 and during the following months, the registry of signers of the Presidential Recall Referendum Petition of President Chavez (revocatoria del mandato presidencial, or RPP)[5786] was made available on the Website of the Congressman Luis Tascón (www.luistascon.com), who belongs to the official party in an unlawful way. This register, called “The Tascon List” or “The List,” was created with the objective that followers of President Chavez could verify whether the signers of the RPP had or had not been fraudulently included on that list. On April 15, 2005, the President of the Republic recognized the existence of “The List” and made an appeal to the regional authorities to archive and bury it.[5787] Nevertheless, there have been many complaints received by the Inter-American Commission on Human Rights indicating a worrisome trend in discriminatory actions against persons who signed the RPP.”[5788] The complaints “alleged that “The List” is still being used to limit the signers’ access to basic services and social welfare programs, and that they continue being dismissed or refused employment in private firms as well as in state enterprises.”[5789]

In May 2007, allegations were reported in several newspapers that public employees are being required to join the government’s single unity political party, the United Socialist Party of Venezuela (Partido Socialista Unido de Venezuela (PSUV)) under the threat of job termination and the announcement of advantages such as inclusion in social missions and educational programs. The employees were also informed that personal data about political affiliations are being used for discriminatory purposes.[5790] However, Government officials have denied this statement.[5791]

Voting Privacy

The Organic Law on Suffrage and Political Participation was enacted on December 13, 1997.[5792] This law introduces the use of electronic voting machines to automate the upcoming elections.[5793] There have been seven totally automated elections managed by Indra Systems, a Spanish firm with extensive experience in Europe and, since 2004, by Smartmatic, founded by Venezuelan engineers, under a bid approved by the National Electoral Council (Consejo Nacional Electoral, or CNE). Smartmatic operated the 2004 e-voting election for the presidential recall referendum.[5794]

Regulation of Identification Systems

In early 2005, Cuba and Venezuela reached an agreement to improve the Venezuelan identification system in compliance with the Organic Law on Identification. The law aims at using biometric technology to ensure an efficient system of identification by consolidating the digitization and updating of data, as well as by issuing an identification card with a digital fingerprint.[5795]

According to the Government Ministry of Popular Power for Communication and Information (Ministerio del Poder Popular para la Comunicación e Información), , the new required official government polycarbonate electronic identification card would be established, containing “more information than you could believe possible.” This has not yet been implemented, but is still an active project.[5796]

Private Sector Initiatives

The Venezuelan Chamber of Electronic Commerce (Cavecom-e) and the Chamber of Telecommunications Service Companies (CASETEL) have jointly developed an initiative (Policies for the Proper use of Networks) to research and generate a set of best practices to foster the proper use of networks.[5797] The main objectives of these policies, which were published in October 2003, are to train users in the proper use of networks, identify practical and secure solutions to address the problems of intrusive mass mailings, and try to prevent attacks on networks. The policies consider spam (unsolicited commercial e-mails), malware (adware, spyware, viruses, Trojans), network attacks, and unsolicited opening of ports, open relays or proxies, to be "bad practices."

NGO Advocacy Work

The non-governmental organization (NGO) sector has also participated in identifying problems of access to information, freedom of expression, censorship, voting secrecy and the right to electoral participation. An accusation of conspiracy and treason was launched against the Asociación Civil Súmate[5798] and its directors.

The NGO Venezuelan Education Action Program (PROVEA) has received complaints from more than 70 journalists for acts of aggression and from 60 for censorship, among cases related to the violation of freedom of expression in Venezuela. PROVEA was concerned that the RESORTE Law, which had not yet been published at the time of publication of PROVEA's 2004 report, could be an instrument of censorship.[5799]

Another NGO, Transparency Venezuela (TV), when the Electoral Report[5800] was presented by Venezuela to the Interamerican Convention against Corruption (CICC) in March 2004, declared that it had been difficult to access information that concerned them. However, information should be public for two reasons: 1) state organizations have not assimilated the citizen's right to access information which concerns them, pursuant to the Constitution of 1999, and 2) information systems are outdated and inefficient. Transparency Venezuela sees this situation reflected even in the official report presented before the Committee of Experts of the CICC since the report, lacks data, quantifying studies and statistics, which impede the effective statement of accounts, and a proper factual evaluation in order to reach satisfactory conclusions. They conclude that, as long as the Judicial Branch, the Attorney General's Office (Ministerio Público), the Ombudsman and the Public Controller's Office cannot rely on precise statistical data, improvements in the transparency of the administration that affect the country are not likely.

International Obligations

Venezuela ratified the 1948 Universal Declaration of Human Rights,[5801] the 1966 International Covenant on Civil and Political Rights, and the American Convention on Human Rights on June 23, 1977.[5802] The Convention provides that every person has "the right to have his honor respected and his dignity recognized." Additionally, "no one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. And everyone has the right to the protection of the law against such interference or attacks."

[5763] Constitución de la República Bolivariana de Venezuela de 1999 [Const.], available at <http://www.constitucion.ve/>. The English version of the Venezuelan Constitution is available at <http://www.vheadline.com/readnews.asp?id=6831>.
[5764] Article 28: "Anyone has the right of access to the information and data concerning him or her or his or her goods which are contained in official or private records, with such exceptions as may be established by law, as well as what use is being made of the same and the purpose thereof, and to petition the court of competent competence for the updating, correction or destruction of any records that are erroneous or unlawfully 'affect the petitioner's right. He or she may, as well, access documents of any nature containing information of interest to communities or group of persons. The foregoing is without prejudice to the confidentiality of sources from which journalist receives information, or law may determine secrecy in other professions."
[5765] Article 48: "The secrecy and inviolability of private communications in all forms are guaranteed. The same may not be interfered with except by order of a competent court, with observance of applicable provisions of law and preserving the secrecy of the private issues unrelated to the pertinent proceedings."

[5766] Article 60: "Every person is entitled to protection of his or her honor, private life, intimacy, self-image, confidentiality and reputation. Law shall restrict the use of electronic information in order to guarantee the personal and family intimacy and honor of citizens and the full exercise of their rights."
[5767] Article 143: "Citizens have the right to be informed by Public Administration, in a timely and truthful manner, of the status of proceedings in which they have a direct interest, and to be apprised of any final decisions adopted in the matter. Likewise, they have access to administrative files and records, without prejudice to the limits acceptable in a democratic society in matters relating to internal and external security, criminal, investigation and the intimacy of private life, in accordance with law regulating the matter of classification of documents with contents, which are confidential or secret. No censorship of public officials reporting on matters for which they are responsible shall be permitted."

[5768] Article 337: "The President of the Republic, at a meeting of the Cabinet of Ministers, shall have the power to decree states of exception. Expressly defined as such are circumstances of a social, economic, political, natural or ecological nature, which seriously affect the security of the Nation, institutions and citizens, in the face of which the powers available to cope with such events are insufficient. In such case, the guarantees contained in this Constitution may be temporarily restricted, with the exception of those relating to the right to life, prohibition of incommunicative detention or torture, the right to due process, the right to information and other intangible human rights."

[5769] Articles 98, 101, 110 and 124 of the Venezuelan Constitution, available at <http://www.vheadline.com/readnews.asp?id=6831>.

[5770] See <http://www.cpsr-peru.org/bdatos/venezuela/privacidad/> (in Spanish).

[5771] Ley sobre Protección a la Privacidad de las Telecomunicaciones, [Telecommunications Privacy Protection Law], December 16, 1991, available at <http://www.garciavalentiner.com/espanol/LSPPC.doc> (in Spanish).
[5772] See generally Pirillo Domenico and Da Costa Karina. Normativa Venezolana en Materia de Ciberseguridad [Venezuelan Law in cybersecurity], Inf@Citel, No. 24, June 2006, <http://www.citel.oas.org/newsletter/2006/junio/seguridad-ven_e.asp> (in Spanish).

[5773] See <http://www.conatel.gov.ve> (in Spanish).
[5774] Organic Telecommunications Law, Articles 20 and 50.

[5775] See <http://portal.cnti.ve/cnti_docmgr/sharedfiles/LeyMensajesDatosFirmasElectronica.pdf> (in Spanish).
[5776] Article 8: "Cuando la ley requiera que la información conste por escrito, ese requisito quedará satisfecho con relación a un Mensaje de Datos, si la información que éste contiene es accessible para su ulterior consulta." ("When the law requires that the information be in writing, this requirement will be satisfied by a data message, if the information it contains is accessible for future consultation.")
[5777] The first one is dated July 9, 2000 (<http://www.tsj.gov.ve/decisiones/scon/Abril/523-090401-00-2317%20.htm>); and the second one August 18, 2003 (Boletín Especial TPA: "Competencias del Poder Público," agosto de 2003).
[5778] Article 16: "La acción de amparo es gratuita por excelencia. Para su tramitación no se empleará papel sellado ni estampillas y en caso de urgencia podrá interponerse por vía telegráfica. De ser así, deberá ser ratificada personalmente o mediante apoderado dentro de los tres (3) días siguientes. También procede su ejercicio en forma verbal y, en tal caso, el Juez deberá recogerla en un acta" ("The action of protection is free by definition. Its processing will not require sealed stationary nor tax stamps and, in case of urgency, the intervention may be made by telegraph. In this case, it must be ratified personally or by power of attorney within the following three days. It may also proceed in oral form and, in such a case, the judge should formalize it in an Act").
[5779] José Ovidio Salgueiro A., "Ley sobre Mensajes de Datos y Firmas Electrónicas," February 26, 2005, available at <http://www.cavecome.org.ve/bin_cavecome/main/templates/seccion.asp?tipo=&seccID=4&nivel=2&codigo=109> (in Spanish).
[5780] For an electronic document to be valid, it must fulfill some requirements, according to José Ovidio Salgueiro: "a data message which presents all of the elements of the identification requirement, which is to say, one which has an electronic signature which has generated an electronic certificate that has been provided by a service provider certified and accredited by the Superintendent of Electronic Certification Services (acronym in Spanish SUSCERTE), is one which will have the same validity and probative effectiveness that the law grants to documents signed in autograph form." Id.

[5781] Available at <http://www.alfa-redi.org>.
[5782] A "snuff film" is a video, sometimes pornographic, that allegedly depicts actual murder, produced for entertainment purposes.

[5783] Normas relativas al Requerimiento de Información en el Servicio de Telefonía Móvil [Norms pertaining Information Handling of information in Mobile Telephone Service], April 1, 2005, at <http://www.conatel.gob.ve/downloads/marco_legal/REQUERIMIENTO%20INFORMACI%D3N%20GO%2038157%2001-04-2005.zip>.

[5784] See <http://www.bcv.org.ve/blanksite/c3/leybancos.pdf> (in Spanish).
[5785] Ombusdman, "Defensoría del Pueblo solicitó nulidad del artículo 192 de la Ley General de Bancos y Otras Instituciones Financieras," September, 19, 2004, available at <http://www.defensoria.gov.ve/detalle.asp?sec=200808&id=462&plantilla=1&txt=192> (in Spanish).

[5786] The revocatory referendum is a right established in Article 72 of the 1999 Constitution of Venezuela according to which the citizen has the power, by means of voting, to revoke all the positions obtained by popular election. In August 2004, citizens of Venezuela, who live inside and outside the territory, evaluated the management of President Hugo Chávez Frías through a recall referendum. See Consejo Nacional Electoral, Boletín electoral: Referendum del 15 de Agosto de 2004, September 3, 2004, available at <http://www.cne.gov.ve/referendum_presidencial2004/> (in Spanish).

[5787] Detailed information about the use of Tascon’s list is given in the video: La Lista: un pueblo bajo sospecha [The List: A people under suspicion]. For example, Minute 9:20 shows footage of President Chavez giving an order to “bury Tascon’s list,” as it no longer serves a purpose, although, he admits, at one time it probably did. Minute 11:02 shows President Chavez stating that anyone who signs (the Presidential Recall Referendum) against Chavez will have to give his name, his identification card number and his fingerprints, to be recorded for history. See the summary of the video (12 minutes) available at <http://www.youtube.com/watch?v=jS_4TLvphW8>. For a complete version (43 minutes), See <http://www.ideaspublicas.org/category/media/>.
[5788] Reporte del 2005 de la Comisión Interamericana de Derechos Humanos (IACHR), [2005 Report of the Inter-American Commission on Human Rights], articles 324, 326, 327, available at <http://www.cidh.org/annualrep/2005eng/chap.4e.htm> (in Spanish). See PROVEA Boletín Electrónico 154: La Causa Continúa Vigente para Personas Despedidas por Razones Políticas; information issued by the trade union Sindicato Nacional de Trabajadores de la Prensa, April 2005, available at <http://www.derechos.org.ve/actualidad/coyuntura/2005/coyuntura_154.htm#05> (in Spanish).
[5789] Id. at 326, 327.

[5790] Elimpulso.com, Vivas: Gobierno obliga a empleados a inscribirse en Partido Único [Vivas: Government forces employees to register in ‘unity party’), <http://www.elimpulso.com/Pages/Vernoticia.asp?id=40574> [in Spanish]. See See: Eluniversal.com, Empleados públicos obligados a ingresar al partido único . [Public employees required to join “unity party”] <http://www.eluniversal.com/2007/05/08/pol_art_empleados-publicos-o_276740.shtml>.
[5791] Diariolaregion.net. No hay presión para anotarse en las filas del Partido Único, [There is no pressure to register as a member of the Unity Party]. May 3, 2007. <http://www.diariolaregion.net/seccion.asp?pid=29&sid=1554&notid=21064> (in Spanish).

[5792] Available at <http://www.cne.gov.ve/documentos/leyorg.php>.
[5793] There have been seven elections totally automated and managed by Indra Systems, a Spanish firm with extensive experience in Europe and, since 2004, by Smartmatic, founded by Venezuelan engineers, under a bid approved by the National Electoral Council (Consejo Nacional Electoral, or CNE). The first experience in Venezuela with Indra was in the 1998 presidential election when Hugo Chavez won. Smartmatic operated the 2004 e-voting election for the presidential revocatory referendum. See <http://www.iri.org/pdfs/Venezuelas_LR_Elections_Nov98.rtf>. Principal CNE member, Ezequiel Zamora, declared: "I thought a process as simple as a referendum should be done manually. An untried system is always going to create doubt."Alexandra Olson "Doubts over Touchscreen Tech Choice for Venezuela Recall," USA Today, July 12, 2004.
[5794] See Observatorio Voto Electrónico. Estudio Venezuela 2004, <http://www.votoelectronico.es/Archivos/Articulos/venezuela2004.pdf>. See generally Alexandra Olson, Doubts over Touchscreen Tech Choice for Venezuela Recall, USA Today, July 12, 2004 <http://www.wvcag.org/news/fair_use/2004/07_12.htm>.

[5795] J. Raymond, "Criminalística: ¿Bondades de los sistemas de identificación Cubanos en Venezuela?," March 3, 2005, available at <http://www.tecnoiuris.com/modules.php?name=News&file=article&sid=1074> (in Spanish); See also Delia Da Silva, "Acertadas propuestas de Jesse Chacón en materia de identificación," March 4, 2005, available at <http://www.mij.gov.ve/minpis/Edicion?accion=VerNoticia&idnoticia=855> (in Spanish).

[5796] Gobierno Bolivariano de Venezuela, Sistema de Identificación Nacional es uno de los Cinco Mejores y más Seguros del Mundo, [National Identification System is one of the Five Best and Most Secures in the World], November 27, 2006 <http://www.mci.gob.ve/entrevistas/3/11049/sistema_de_identificacion.html> (in Spanish).

[5797] See <http://www.cavecom-e.org.ve/common/noticia/Pol%EDticasdelBuenUsodelasRedes.doc> (in Spanish).

[5798] Súmate is an organization that monitors elections. It launched a campaign called "Voting Secrecy Is in Danger" and coordinated the petition for the presidential recall referendum in 2003 and 2004. The accusation against this NGO states that they received funds from international organizations and used these funds to conspire against the State. According to the Súmate Web page, neither the Venezuelan Constitution, nor any of its laws, prohibit the financing of NGOs by international organizations.

[5799] PROVEA, "Situación de los derechos humanos en Venezuela," September 2003-October 2004, at 425-449, available at <http://www.derechos.org.ve>.

[5800] Transparencia Venezuela, "Comentarios con ocasión al Informe presentado por Venezuela a la Convención Interamericana contra la Corrupción en marzo del 2004," July 2004, available at <http://www.miradordemocratico.org.ve/admin/multimedia/imagenes/20041217103003.pdf>.

[5801] United Nations, Universal Declaration of Human Rights, Brief History and Member Nations, available at <http://www.humanrightsandtolerance.org/udhr-members.html>.
[5802] See "Convención Americana sobre Derechos Humanos. Pacto de San José de Costa Rica," available at <http://www.oas.org/juridico/spanish/firmas/b-32.html> (in Spanish).