The Attorney General of the Republic, Alejandro Gertz Manero, published an agreement this month in the Official Gazette of the Federation (DOF) and with it he has unleashed the debate. The publication gives capabilities to public ministries, the officials who carry out investigations, to request real-time geolocation data and other data from telecommunications companies without first going through a judge. Although it is restricted to some specific cases, such as those in which a life is at risk, the new licenses generate suspicions towards an agency that has used its powers to monitor the phones of people who were not even under investigation. This newspaper has consulted a group of experts to interpret what posted in the DOF and the implications it could have.
The agreement, dated December 6, has generated diverse opinions on an issue that was already thorny. Last month it was learned through a newspaper investigation The New York Times that agents from the Mexico City Prosecutor's Office had requested this same type of telephone data from a judge, justifying that they were investigating an alleged kidnapping. This is how they accessed information from the phone number of the current mayor of Benito Juárez, Santiago Taboada, who is also the opposition candidate for the Government of Mexico City. The report aroused criticism from the opposition, who accused abuse of authority by the agency in charge of seeking justice.
In a very similar vein, the head of the Attorney General's Office of the Republic has specifically given permission to his public ministries to ask telecommunications concessionaires and application and content service providers for “the geographical location in real time or the delivery of the preserved data” of a client, “when the physical integrity or life of a person is in danger or the object of the crime is at risk, as well as in events related to illegal deprivation of liberty, kidnapping, extortion or organized crime ”. Then, he will have 48 hours to report what he did to the judge.
The head of the FGR already had these capabilities. But now it has been placed directly in the hands of public ministries. The agreement also gives investigative agents the ability to request telecommunications companies to safeguard “data contained in networks, systems or computer equipment” of a telephone; or to ask a judge for authorization to access banking information of any person through the National Banking and Securities Commission. Something that was authorized for positions such as unit heads or officials above them.
Criminal lawyer Ambrosio Michel, who analyzed the agreement with his legal team, recognizes that due to the ambiguity of the language used, this document could open the door for public ministries to request all types of telephone data from companies without judicial authorization. even the sheets with one line calls. Michel senses that this resolution will end up reaching the Supreme Court, as soon as it is used to accuse a person and his defender challenges it. Although he highlights that public ministries, according to what is published, must continue to ask their superiors for authorization. “It is delegating without delegating,” he says. “Can they delegate powers to you when you are subject to authorization from a superior?” he asks.
For the criminal Ulises Gómez Nolasco, this point precisely protects the key. “There is a desire to get healthy on the part of the prosecutor,” he says. “He is creating a dam, so that any improper use of this power does not hit him. If the same thing happened to him as to Ernestina Godoy, he could say: it is the responsibility of the public ministry that exercised that power. Gómez Nolasco worked in law enforcement and admits that these types of powers are very useful when prosecuting crimes. “But the problem is how it is used and how we control misuse,” he says.
“If we were in a place where prosecutors were trustworthy, it would obviously be to strengthen them and give them tools to prosecute crime,” says lawyer Adriana Greaves, from the Tojil organization. “However, given the Mexican context, it can be dangerous because it opens a door to possible extortion and espionage,” she adds. The words of this agreement could open a legal debate, explains the lawyer, who points out that the most debatable thing is in the phrase “the retained data” and what that means, whether it includes content data or just traffic data.
The eye will be on the performance of the FGR, which has previously proven that there are sufficient reasons to be alert. This newspaper announced that the Prosecutor's Office purchased intelligence programs for the geolocation of cell phones and analysis of massive data between 2019 and 2020. In addition, EL PAÍS reported in July of last year that this agency had illegally tapped the phone of Emilio Lozoya's father. , in order to pressure him while they negotiated the Odebrecht case. The new agreement now leaves the door ajar on new access to private information.
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