Judge grants definitive suspension of the biometric data registry
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The Second District Judge in Administrative Matters Specialized in Economic Competition, Broadcasting and Telecommunications of Mexico City, Juan Pablo Gómez Fierro, granted the first definitive suspension against the National Register of Mobile Telephone Users (PANAUT), because that database, by itself "is not intended to constitute a direct and immediate benefit for the community."
The definitive suspension has the effect that the promoter of the amparo is not obliged to hand over their biometric data, as required by the reform of the Federal Telecommunications Law, until the merits of the amparo are resolved. Although this ruling only benefits the complainant in this lawsuit, it is an important precedent for the dozens of injunctions that have already been filed to challenge PANAUT.
For the togado, who by the way is the same one who granted definitive suspensions with general effects against the electricity reform, the implementation of the registry "will not bring as an immediate, direct and necessary consequence, a decrease in the incidence of crime."
One of the objectives of the legal reform created by PANAUT is to try to inhibit or reduce the commission of crimes, such as extortion, in which cell phones are used. Against this, the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI) announced on Tuesday that it will promote an Unconstitutionality Action that must be resolved by the Supreme Court.
In this definitive suspension, whose copy has a HIGH LEVEL, Judge Gómez Fierro points out that “if the purpose of this register is that there is a database for the exchange of information between the Federal Institute of Telecommunications and the competent authorities in matters of security and justice, in matters related to the commission of crimes, this does not mean that the mere validity of the norm will automatically cause a decrease in crimes ”.
How can you protect yourself against the National Register of Mobile Telephone Users?
Therefore, the definitive suspension does not prevent the competent authorities from investigating any wrongdoing, even if it is related to a mobile phone line. Likewise, this suspension, as a precautionary measure, does not hinder the powers of the government "to clarify the facts and investigate and prosecute those responsible (for a crime), as they can do to this day," the judge considered .
Consequently, Gómez Fierro emphasizes, postponing the registration of the mobile phone line of the applicant for protection in said register will not cause "the commission of a crime or the continuation of one", therefore, with the suspension, the company is not losing any benefit.
In the order of definitive suspension, the judge reiterates that this measure does not cause the competent authorities in matters of security and justice to be hampered to carry out their functions within the constitutional and legal framework in force.
Today, without the PANAUT having been effectively launched, article 303 of the National Code of Criminal Procedures (CNPP) already establishes powers so that the authorities can request the geographic location, in real time, of cell phones that are found. related to criminal acts.
"This article even provides for exceptional situations for the investigating authorities to order the geographic location in real time or the delivery of stored data without prior judicial authorization," explains Gómez Fierro. The same paragraph of the CNPP establishes that the investigating authorities may require telecommunications concessionaires to keep data contained in computer networks, systems or equipment, for up to ninety days.
Protection of human rights
When making a preliminary analysis of the reform to the Federal Telecommunications Law, which entered into force on Saturday, April 17, the judge maintains that the PANAUT affects the right recognized in article 6 of the Constitution, according to which everyone has right to free access to plural and timely information, as well as to seek, receive and disseminate information and ideas of all kinds by any means of expression.
This precept of the Magna Carta adds that the State will guarantee the right of access to information and communication technologies, as well as to broadcasting and telecommunications services, including broadband and internet.
For this reason, the requested reform could influence “the right of access to information and communication technologies, as well as to broadcasting and telecommunications services ”, which -in turn- affects the right to free access to plural information and timely, recognized in article 6 of the Constitution.
Based on the appearance of good law, the ruling that grants the definitive suspension details that the reform to the Federal Telecommunications Law could also violate article 16 of the Constitution, which recognizes that everyone has the right to the protection of their personal data.
"This District Judge does not see a" means to end "relationship between the delivery of personal data [particularly biometric data such as fingerprints, iris, face or retina, etc.] as a condition for having or keeping a line mobile phone and the investigation or prosecution of crimes ”.
In other words, the togado does not appreciate how it is that the delivery of biometric data, as an exception to the principle of its protection, "could positively influence the public security activities that the State is obliged to deploy."
The reasoning of the judge goes further: He even says, “it is not understood to what extent the investigation and prosecution of the crime could be favored, since the delivery of those personal data is not a necessary condition for the respective instances to investigate more or best".
In these lawsuits that challenge the constitutionality of the National Register of Mobile Telephone Users, it is highlighted that Judge Juan Pablo Gómez Fierro has admitted all the amparo claims, and granted their respective suspensions, first provisional, and now a definitive one.
On the other hand, Judge Rodrigo de la Peza López Figueroa, head of the First District Court specialized in Economic Competition, holds a criterion contrary to that of his counterpart, for which he has rejected the amparo claims against the PANUT that have reached his court . The rulings of this judge are already being challenged through the appeal, which must be resolved by a Collegiate Court specialized in Economic Competition.
In the event that the protection against the registry is granted, if these differences persist between the courts and tribunals specialized in the matter, it is possible that later the contradiction of criteria will have to be analyzed by the Supreme Court of Justice of the Nation. , to establish the way in which the requested reform should be interpreted.
This is precisely what the Court itself will establish when it analyzes the Unconstitutionality Action that the INAI plans to file, so that at the end of the day, it will be the highest court in the country that will have the last word on this issue. However, the amparos against PANAUT can continue to be promoted, the deadline to do so ends on May 31.