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EPIC --- Privacy and Human Rights Report 2006

Guatemala

Constitutional Privacy Framework

The Political Constitution of the Republic of Guatemala has established rules that cover individual human rights, but does not expressly defines "privacy" as a human right. The Constitution nevertheless protects some aspects of the right to privacy as follows:

• Correspondence and other forms of private communication are inviolable. They may only be intercepted or recorded pursuant to a court order and to formalities established by law. The secret of correspondence is guaranteed as well as phone communications, radio transmissions, telegrams and other products of modern technology. For tax or legal purposes and for cases of inspection, supervision, and state intervention, the disclosure of accounting records and other private documents may be required within the limits provided by law. The documents and information obtained against this article cannot be used and cannot produce evidence in a court.[2617]
  
• Every administrative act of the government is public. Any citizen has the right to obtain, at any time, reports, copies, photocopies, reproductions and certifications that he has requested. Every person has the right to access public documents, except for military and diplomatic documents or information.[2618]
  
• The administration of public files is a duty of the State and it is a right of the citizens to get access to them. Every person has the right to know and obtain any information about himself that contains any public record or database, as well as has the right to know the purpose of these records, and to correct and update them. The processing of records about political affiliations is prohibited, except if it is done by electoral authorities and political parties.[2619]
  

The Guatemalan Constitution also amplifies the scope of the Constitution and acknowledges that privacy can be protected as an individual human right in Article 44:

Rights inherent to the human (individual human rights): the rights and guarantees that have been established in the Constitution do not exclude others, that although not expressly mentioned in the Constitution, are inherent to the human person.[2620]

Statutory Rules Related to Privacy

There is no comprehensive data protection legal framework applicable to the private sector. The Penal Code[2621] establishes penalties for the following offenses: prohibited records,[2622] the manipulation of information,[2623] and the abusive use of information.[2624]

There is no data protection law. Habeas data[2625] has not expressly been included in the Constitution or other applicable law in Guatemala, but some principles of habeas data can be inferred from the Constitution and the Guatemalan legal framework, even though there are no specific laws or rules that regulate habeas data. There is no data controller or other administrative entity that controls the data collection and use of private information.

Wiretapping and Government Surveillance

On August 10, 2006, the Law against Organized Crime was published.[2626] Article 48 establishes that whenever it is necessary to prevent, interrupt or investigate organized crime (conspiracy, money laundering, terrorism, corruption, drug trafficking, smuggling, financial intermediation, murder, kidnapping, fraud, bankrupt, etc.), law enforcement may intercept, record and reproduce (with the corresponding judicial order) oral, written, telephonic, radiotelephonic, electronic and similar communications that use electromagnetic spectra, as well as any future surveillance technologies.

The Law of the Direction of Civil Intelligence stipulates that in cases where there is evidence of organized crime activities, specially drug trafficking and common delinquency, and where at the same time there is a danger to life, physical integrity, liberty and specific individuals goods, the Public Ministry can request, as an emergency measure, judicial authorization to temporarily intercept telephonic, radio phonic, electronic and other similar communications. It also creates the Counterintelligence division to act in matters related to organized crime with terrorism. The mission of such office is unclear; its mandate is to transform “information” either from the public institutions or from “other sources” into “intelligence.” There is no provision authorizing them to disclose the kinds of information that they rely on.[2627]

In October 2006, some students of Law of the Francisco Marroquin University, with the support of their professor, proceeded to challenge before the Constitutional Court (CC) the provisions of the Law of the General Direction of Civil Intelligence and the Law against Organized Crime that authorize the tapping and interception of telephonic and other communications. The Court has not yet pronounced its judgment; therefore, the law is still in force.[2628]

In 2006 the Ministry of Internal Affairs (Ministerio de Gobernación) stated that the purchase of special equipment to perform telephonic interceptions aimed to fight against organized crime would not be done through GuateCompras (open information government purchasing system) due to national security reasons. The Grupo de Apoyo Mutuo (GAM), a human rights NGO published a statement criticizing the lack of transparency in reporting those purchases because those, according to GAM, there “must be oversight and control by the civil organizations that perform this social audit.”[2629]

Amnesty International has reported verified attacks against the privacy of human rights advocates and social activists in Guatemala, including illegal phone interceptions.[2630] Prensa Libre, one of the most important newspapers in Guatemala, published a story that revealed clandestine telephone interceptions, either by members of military intelligence or by particular organized groups.[2631]

In September 2006, the police of the Prison of Pavon, a center for detainees, found 14 pieces of telephonic interception equipment. The prisoners were using the data as tools to extort people outside the prison, either particular groups or people linked to organized crime.[2632]

In January 2007, SEDEM, an institution in charge of monitoring the safety of Human Rights advocates, sent a communication to all the institutions stating that the government was taking measures to spy on the civil population, either by phone or by filtering e-mails.[2633]

Anti-terrorism Measures

The Congress ratified the Inter American Convention against Terrorism, not published until March 22, 2006, the same day that the Congress ratified the regulation to implement it.[2634] These have both been in force since March 22, 2006. No specific measures have been taken to implement the Convention, but the document clearly states some regulations involving individuals’ bank transactions. The Congress also ratified the Regulation on the Law to prevent and punish terrorism financing activities. It is compulsory for people transferring money to fill in a questionnaire with their personal data, the data of the one transferring the money and also the identification code of the transaction. This procedure allows the Government, if there is any suspicious transaction, to check all the documents and objects related with the irregular transaction, even electronic documents.

Ibero-American Data Protection Network

In June 2003, the Spanish Data Protection Agency (AEPD) organized the second Ibero-American Conference on the Protection of Personal Data in La Antigua (Guatemala). The result of this meeting is reflected in the Antigua Declaration (Declaración de La Antigua).[2635] It establishes that the protection of personal data is a fundamental right and recognizes that the processing of personal data can encourage the development of the Information Society in each Ibero-American country. At the same time, the Declaration notes the necessity to encourage the implementation of measures that guarantee a high level of protection of personal data. It also highlights the importance of establishing a permanent channel of dialogue and collaboration in data protection matters in the Ibero-American region. The Declaration also created the Ibero-American Data Protection Network (IADPN).[2636]

Open Government

In February 2005, a bill (No. 3165 to the Guatemalan Parliament was presented, titled "Public Information Access and Classification and Declassification of Classified State Information."[2637] The bill regulates the right to access public information and personal data contained in public and private records. The bill also gives the state the power to classify and declassify sensitive state information.

Article 40 of Bill No. 3165 establishes, that every person whose personal data appears in archives, files, records, data files, databases or any form of information storage held in private or in public records, has the right to know everything that appears in his file; to know the identity of the data controller; know the purpose for which his information is collected; to correct wrong personal information, or have false or inaccurate data erased or amended; and to delete sensitive data. The information requested must be provided within 72 hours of the request.

Guatemala has undertaken a freedom of information bill.[2638] The bill establishes that any person may generally gain access to public administrative activities. This bill is still in discussion in the Parliament. During the discussion, members of the Guatemalan Republican Front (a political party in the opposition) introduced a series of amendments that promote secrecy instead of improving access to information.

International Obligations

Guatemala signed the American Convention on Human Rights (the Pact of San Jose, Costa Rica), the United Nations International Covenant on Civil and Political Rights[2639] and the Universal Declaration of Human Rights.

[2617] Article 24 of the Political Constitution of the Republic of Guatemala of 1985, available at <http://www.georgetown.edu/pdba/Constitutions/Guate/guate85.html> (in Spanish).
[2618] Id. at Article 30.
[2619] Id. at Article 31.

[2620] Constitutional Court Journal No. 39, case No. 334-95, page No. 52, sentence of March 26, 1996.

[2621] Penal Code, (Código Penal), Decree No. 17-73 of the Congress of the Republic of Guatemala with its modifications, available at <http://www.oas.org/juridico/mla/sp/gtm/sp_gtm-int-text-cp.pdf> (in Spanish).
[2622] Article 274 D of the Penal Code establishes the following: "Prohibited Records: will be penalized with prison of six months to four years or a criminal penalty of two hundred to one thousand Quetzales, the person who creates a data base or electronic records that can affect the intimacy of any person."
[2623] Article 274 E of the Penal Code provides: "Manipulation of information. It will be sanctioned with prison from one to five years and a criminal penalty of five hundred to three thousand Quetzales, the person who uses electronic records or software in order to hide, forge or alter the accounting information or the economic situation of an individual or an entity (Corporation)."
[2624] Article 274 F provides: "Use of information. The penalty of imprisonment for six months to two years and the criminal penalty of two hundred to one thousand Quetzals will be imposed to the person who, without authorization, uses without proper authorization from its owner, a database or electronic information, or who gets access by any means to this database or electronic data without authorization."

[2625] Habeas data is the right to know, update, and rectify information gathered about individuals in data banks and the records of public and private entities.

[2626] Ley Contra el Crimen Organizado, [Law against Organized Crime], Decree 21-2006, published on August 10, 2006, available at <http://www.congreso.gob.gt> (in Spanish).

[2627] Ley de Dirección General de Inteligencia Civil, [Law of the General Direction of Intelligence], Decree 71-2005, in force since 2005, available at <www.cenadoj.gob.gt> (in Spanish).

[2628] El Periódico de Guatemala, Impugnación de las Escuchas, June 15, 2007, available at <http://www.elperiodico.com.gt/es/20070615/opinion/40687/> (in Spanish).

[2629] GAM, ¿Cuál es la Transparencia del MINGOB?, October 2006, available at <http://www.albedrio.org/htm/otrosdocs/comunicados/gam-053.htm> (in Spanish).

[2630] Amnistía Internacional, Defensores y Defensoras de los Derechos Humanos en Peligro, August 2006, available at <http://web.amnesty.org/library/Index/ESLAMR340162006?open&of=ESL-GTM> (in Spanish).
[2631] Menocal. Carlos, Intervenciones Telefónicas Sin Control, November 5, 2006, available at <http://www.prensalibre.com/pl/2006/noviembre/05/155661.html> (in Spanish).

[2632] Fuerzas de Seguridad Tomaron Control de Granja Penal Pavón, September 25, 2006, available at <http://www.guatemala.gob.gt/noticia.php?codigo=158&tipo=1> (in Spanish).

[2633] Available at <http://www.albedrio.org/htm/otrosdocs/comunicados/sedem-001.htm> (in Spanish).

[2634] Decree 86-2006, March 2, 2006, available at <http://www.congreso.gob.gt> (in Spanish).

[2635] La Antigua Declaration, made on the occasion of the Second Seminar on Personal Data Protection in Ibero-America, (Declaración de La Antigua (Guatemala) con motivo del II Encuentro Iberoamericano de Protección de Datos Personales), June 6, 2003, available at <https://www.agpd.es/upload/Declaracion_La%20Antigua.ing.PDF>, see also <https://www.agpd.es/index.php?idSeccion=348> (in Spanish).
[2636] Ibero-American Data Protection Network homepage <https://www.agpd.es/index.php?idSeccion=350> (in Spanish).

[2637] Republic of Guatemala Congress. Legislative Administration, register No. 3165, bill presented by Congressman Eduardo Zachrisson Castillo and Congresswoman Nineth Montenegro Cottom, available at <http://www.congreso.gob.gt> (in Spanish).

[2638] Freedom of Information Bill, (Proyecto de la ley de Libre Acceso a la Información), available at <http://probidad.org/regional/index.php?seccion=legislacion/2001/039.html0> (in Spanish).

[2639] "States Parties to Covenant on Civil and Political Rights. Elect Nine Members to Human Rights Committee," 27 Meeting of the International Covenant on Civil and Political Rights, September 9, 2002, available at <http://www.un.org/News/Press/docs/2002/hr4623.doc.htm>.