Balloons in the sky usually mark a celebration – but there is less to celebrate when, as in this case, they are recording your every move. Chilean NGO Derechos Digitales set out to convince the courts that the privacy rights of thousands of people in the affected municipalities, Las Condes and Lo Barnechea, were being compromised.
Paz Peña, the group's Advocacy Director, tells IFEX about the ups and downs of their successful campaign to get a Chilean court to stop 24-hour, 360-degree surveillance. But the story isn't over yet. The two municipalities are appealing the decision at the Supreme Court, and that court's decision is expected this month.
Let's start out by providing some context. Why did the Las Condes and Lo Barnechea municipalities adopt the use of video surveillance balloons? Who played a key role in this decision?
Both municipalities publicly stated that the use of the mass surveillance balloons would increase security for people living in the two districts (by fighting crime) and also aid in traffic control.
This is Israeli military equipment normally used to monitor border areas. Each balloon is bulletproof and is equipped with high-definition 360⁰ cameras, that are capable of identifying a moving person at a distance of more than 1.5 kilometres. Thanks to its night vision capabilities, the system is able to record the movement of citizens 24 hours a day, 7 days a week.
What concerned Derechos Digitales about these balloons?
To begin with, the surveillance balloons impact three rights that are guaranteed by the Constitution: the right to privacy, the sanctity of the home and the right to property in a general sense. The cameras that these municipal balloons carry are part of a policy of mass surveillance: they are cameras with special characteristics and reach and which have been placed in strategic positions; not only are they able to record people's faces and vehicle licence plates from the air, day or night - they are also able to bypass the physical boundaries of a property and even point their lenses through a window towards the inside of a home. The use of such military technology is a disproportionately strong measure vis a vis the stated objective.
Moreover, during the legal challenge we argued that the use [of these balloons] was an infringement of Chilean laws that regulate the protection of personal data and municipal life. This is arbitrary mass surveillance being carried out by the municipal authorities, something which is not permitted by law. At the same time, the people tasked with operating the cameras and recording the images are not municipal employees; nor are they are required to adhere to certain employment standards, such as maintaining the confidentiality of the information they are recording, which is a concern.
We must also keep in mind that this type of technology is discriminatory. The cameras arbitrarily monitor the most economically disadvantaged districts in the municipalities.
What was the main objective of your legal appeal?
The first step was to put an end to the use of the surveillance balloons in the two municipalities, by arguing that the residents' human rights had to be protected.
Second, by filing the legal appeal for protection (recurso de protección) against this controversial government policy, we are trying to promote a serious debate about the authorities' approach to dealing with crime, which tends to be more gimmicky than effective. People have the right to live in a safe society but authorities must also ensure that the security methods they adopt conform to the rule of law.
This type of technology is discriminatory. The cameras arbitrarily monitor the most economically disadvantaged districts in these municipalities.
Did Derechos Digitales work together with other organisations during this campaign? Which ones?
When one works on behalf of civil society and in human rights, it is impossible to not work in collaboration and solidarity with others. Basically, when we are united we have more power. At the same time, it is easier to coordinate actions with others when the intended goal is so clear.
For example, we approached the Foundation for the Protection of Data (Fundación Datos Protegidos y Corporación Fundamental) as we knew that they might be interested in the case and willing to file the protection appeal. Their specialists and their awareness of the issues were key in the creation of a strong argument. During the appeal, we were also supported by others such as the organisation Public Freedoms (Libertades Públicas) and the National Human Rights Institute (Instituto Nacional de Derechos Humanos).
What were the main challenges you faced and how were they dealt with?
There were two major challenges.
First, judiciary timelines and the courts' procedures that determine when it might be possible to file the protection appeal and have a chance to receive a favourable ruling. A careful deliberation and consensus process had to take place before the decision to go public with the topic could be made, as any small thing could prove to be counterproductive and work against the goal. As a result, we decided to not launch a public campaign and instead, more closely watch the actions of the municipalities. That had a very interesting result: the mayor of Lo Barnechea launched a campaign in favour of the balloons and that forced the media outlets to seek us out and consult our opinion. If we ourselves had launched a campaign, as organisations representing civil society, surely we would not have received the same type of attention from the media.
The second challenge was linked to the discourse around crime in the mass media - quite often the tone is one of paranoia with an emphasis on the need for more security “at any cost”. But given the first challenge, addressing the second one required some moderation. So we chose to constantly articulate our position via our own communication channels (columns on our website, ongoing presence on social media networks, letters to the editors, etc) and at the same time we were very careful about what we said to the media.
Privacy is seen as something shady and surveillance is seen as a positive thing. We want to challenge this perception and reverse it.
When there was a unanimous ruling in our favour at the first instance court (court of appeals) we thought it would be important to create a celebratory image so that people could connect positively with our case. Our graphic designer Constanza Figueroa came up with an image that very nicely communicates the positive discourse that we are trying to instill in our advocacy for privacy. In some ways, when the argument “if you've got nothing to hide, you've got nothing to fear” is used, privacy is seen as something shady and surveillance is seen as a positive thing. We want to challenge this perception and reverse it. The seemingly simple image of the kittens playing with the surveillance balloons helps promote this idea and has been incredibly important in allowing people to connect with the issue.
Were there some unexpected developments during the legal process?
I think the most unexpected came for the Lo Barnechea residents and the fact that some media outlets focused a lot on how much money the municipality had spent in acquiring these technologies. We didn't choose to focus on this aspect but it was very important. People in Chile and in other countries are increasingly fed up with this type of spending, particularly when the arguments presented for their use and their effectiveness has not been proven. I have no doubts that this helped lower popular support for the balloons.
Was there a high point during the campaign? And a low point?
The low point is always when you are accused of defending criminals or some such thing or your position is ridiculed in some way. Many of these accusations came from the municipal authorities themselves. But in any case we expected it and we knew we could not lose our patience.
The high point was when we saw how little by little the press began to quote other voices that also put into doubt the effectiveness of using surveillance balloons to combat crime. We saw that we weren't alone anymore.
What part(s) of the strategy do you think most helped ensure this was an effective campaign?
Right now the campaign continues, until we have a final verdict from the Supreme Court (we hope this will happen sometime in April). But for the moment we can identify three things that have helped:
• Working in conjuction with other organisations, having a common voice
• Being patient and waiting to see what the other side had to say
• A celebratory image that positively reinforced the struggle being weighed by our organisations
Citizens' security and privacy can coexist, they do not necessarily contradict each other.
How is your work in this area continuing?
We have to wait and see what the Supreme Court will say, but the ruling by the court of appeals was also very important in the fight for the protection of Chileans' right to privacy. As the ruling indicated, citizens' security and privacy can coexist, they do not necessarily contradict each other - it is therefore essential that we demand that the authorities adopt higher standards in their practices and opt for policies that respect our fundamental rights which are protected by the Constitution. The court of appeals decision could therefore serve as a point of reference for citizens trying to protect their rights when a new type of surveillance technology arrives on their streets.
The ruling could also inspire other organisations in the region to consider how they might strategically use litigation and continue to fight in the courts for our human rights.
What advice would you give to other groups who are trying to have an impact on these types of legal decisions in their countries?
• Work collaboratively and in conjunction with others
• Develop a strategy to determine what is the best possible scenario
• Have patience: you will be attacked for what you are trying to do
• Be creative: this is one of the tools that can put you on an equal footing with even the most powerful rivals.