Mexico: Unconstitutionality of the National Registry of Users of Mobile Telephony
ECIJA considers of particular relevance the resolution of the Supreme Court on the unconstitutionality of the National Registry of Users of Mobile Telephony (“PANAUT“), issued on April 25, 2022. Therefore, some of the most relevant aspects of said resolution will be addressed herein.
The National Institute of Transparency, Access to Information and Protection of Personal Data, and a group of senators dissatisfied with the creation of PANAUT, presented in 2021 unconstitutionality actions on the grounds of the violation of fundamental rights by the PANAUT.
- Resolution of the Court
On April 25, 2022, the plenary of the Supreme Court discussed the aforementioned unconstitutionality actions challenging the decree (“Decree”) that reformed and added various provisions of the Federal Broadcasting and Telecommunications Law for the creation of PANAUT, published in the Federal Official Gazette on April 16, 2021.
The purpose of the Decree was to obligate all mobile phone users to provide their data, including biometrics, as a condition to have access to a mobile phone line.
The project of the unconstitutionality ruling of the PANAUT was prepared by Minister Norma Piña Hernández, indicating that this construct violated the rights to privacy, intimacy, and personal data protection; clearly stating that such was not reasonable, nor was it a necessary legislative measure for prosecuting extortion crimes using cell phones, as was argued by the Legislative Branch at its creation.
The ministers declared, by majority vote, the unconstitutionality of the PANAUT. Nine ministers spoke out for its total invalidity, and two partially rejected it.
During the discussion, the ministers, taking Minister Piña’s project as a reference, analyzed the proportionality between the supposed benefits of the Decree for the sake of security, vis-á-vis, the degree of affectation of the rights to privacy and intimacy of citizens using mobile telephony.
- Grounds of unconstitutionality
The main grounds of unconstitutionality discussed, among others, are the following:
- A massive collection of personal data, and its treatment, are not justified.
- Surrendering control over the data, without a court order, represents danger to the safety of users.
- The PANAUT is of limited usefulness to contain extortion crimes in the country. It was considered absurd “for a person with a cell phone to generate an extortion with a phone registered with its name, this never happens,”; and it was also criticized that the PANAUT system: “seeks that obligations corresponding to the State to be now under the responsibility of individuals.”
- The PANAUT violates the human right of access to communication.
- The PANAUT is not a “necessary legislative measure for a democratic society, since it does not maintain a balance between the need for data in limited circumstances and due respect for the right to privacy of individuals.”
- There are other legal mechanisms to achieve the goals sought by the PANAUT, which are less restrictive of rights; the PANAUT is not justified since there are effective laws that already provide suitable collaboration mechanisms with the justice authorities concerning crimes using mobile telephony, “which are less restrictive of the rights to privacy and data protection.”
- PANAUT does not guarantee the security of the database and therefore does not prevent the misuse of such sensitive information provided by users.
- The Congress violated the mandatory best practices applicable, concerning the personal data protection impact assessment required, therefore, personal data were put at risk.
- There is no security in management of the PANAUT data, and there is no justified cause for the State to have such sensitive information.
The Supreme Court ruled the PANAUT unconstitutional in protection of fundamental human rights, guarding the privacy and intimacy of people; that is, the very personal scope of freedom that must remain untouched by the State and individuals, when the corresponding consent of the citizens is not granted. The analysis made by the Supreme Court in this case, might become relevant in case of any subsequent State proposals involving the massive collection of citizens’ personal data.
ECIJA México, S.C.
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