“We cannot just measure the success of the campaign on the final ruling. Even if we have a big defeat, the case still raised major themes that must be discussed and organizations that are involved.” —J. Carlos Lara
Chile’s first public interest digital privacy case began with an unprecedented act of surveillance of its citizens by two municipalities in Santiago. In 2015, local authorities in two districts released military-grade balloons into the air above the city to monitor for crime and traffic patterns. While the Court of Appeals of Santiago banned their use on a first ruling, the Supreme Court of Chile on appeal recognized that the balloons posed a threat to fundamental rights, but allowed for their continued use, subject to certain conditions.
Court: Supreme Court of Chile
Decision Date: June 2016
Case Number: 18481–2016
Issue: Violation of privacy rights in use of surveillance balloons
Carlos Lara | Research and Policy Director at Derechos Digitales
Romina Garrido | Executive Director of Fundación Datos Protegidos
Pablo Viollier | Public Policy Analyst at Derechos Digitales
In August 2015, authorities floated three hot air balloons over the districts of Las Condes and Lo Barnechea in Santiago, Chile. The balloons were equipped with military-grade technology including a 360-degree camera with recording capability, and nocturnal vision that could monitor citizens below 24 hours a day, and even identify the face of a moving person walking on the streets up to a mile away. The municipalities stated that the use of the mass surveillance balloons would increase security, fight crime, and aid in traffic control.
Immediately, some residents and multiple organizations regarded the balloons as a violation of fundamental constitutional rights. Derechos Digitales, along with three local organizations (Corporación Fundamental and Fundación Datos Protegidos, with assistance from Libertades Públicas A.G.), filed a suit with the Court of Appeals of Santiago. They called for the balloons to be removed because they infringed citizens’ rights to privacy, the sanctity of the home and the right to property. The balloons, they argued, could bypass physical boundaries by pointing cameras into windows, pools, gardens or balconies. The balloons’ collection and storage of citizens’ faces also violated Chilean laws that regulate the protection of personal data.
In a unanimous decision, the Court of Appeals ordered the immediate cessation of the video surveillance balloons, agreeing that they violated rights to privacy and sanctity of the home guaranteed by Article 19 sections 4 and 5 of the Chilean Constitution (English). According to the Court, neither security nor public transit policies were sufficient to allow for these violations. The two municipalities were forced to take down the balloons as they appealed the decision to the Supreme Court.
Retreating slightly from the Court of Appeals, the Supreme Court modified the ruling. Though it recognized that the use of balloons posed a threat to privacy and autonomy, the Court allowed their use provided that certain control mechanisms were put in place: the balloons must only monitor public spaces, a municipal inspector must supervise their operation, the recordings must be deleted after 30 days, and citizens recorded by the balloons must be given access to the recordings.
The case is a prime example of robust partnerships formed to strengthen and enhance the existing efforts of those working in the campaign. When Derechos Digitales initially decided to pursue the case, they immediately recognized advantages that could come from collaborating with other organizations.
“None of us had all the knowledge in all areas. Technology, fundamental rights and arguments regarding privacy, litigation tools and procedures,” said J. Carlos Lara, Research and Policy Director at Derechos Digitales. “The need for expertise forced us to collaborate.”
“We do not usually litigate, so when we finished, it looked more like an academic paper, and not a judicial complaint,” said Pablo Viollier, Public Policy Analyst at Derechos Digitales, “So in the end, we drafted a strong argument together.”
At the same time, to file the case, the team needed plaintiffs who were directly affected by the surveillance balloons. With an existing strong base of support amongst the public, Derechos Digitales dispatched an open call on its social media platforms to locate residents willing to file a case as a plaintiff. The team found plaintiffs to represent residents from both municipalities. From there, the organizations jointly drafted the initial appeal and prepared for oral arguments before both the Court of Appeals and the Supreme Court.
In preparing for the advocacy campaign, Derechos Digitales worked closely with Datos Protegidos to strategize and refine their public message. The organizations could have chosen to publish or communicate with the press independently, but instead the teams discussed tactics for communicating with the public and the press. Numerous articles posted by Datos Protegidos, Chilean media, and other organizations revealed a consistent message.
While the technical information in the case was not complicated, the Datos Protegidos team benefited from the expertise of a technologist on staff who provided input on a report on the potential risks of a technical surveillance system, including issues like the gathering, collection and maintenance of information such as people’s faces.
After the Court of Appeals banned the use of the balloons, the seasoned advocacy team at Derechos Digitales team understood the importance of creating shareable, celebratory imagery that would allow the public to connect positively with the case. An in-house graphic designer illustrated a playful image of kittens batting at the surveillance balloons to promote the campaign and engage the public. This image was posted along with all written communications on the case, which strengthened the overall messaging around the team’s goals.
Collaboration was crucial for this campaign for a number of reasons. Many actors noted that each organization, acting independently, would not have had the capacity to take on the campaign. Litigation is expensive and time-consuming, said some, thus difficult to budget. To plan accordingly, each organization required knowledge and support from others with different experience than was available on their own teams.
Though the Supreme Court of Chile ultimately allowed the municipalities to continue using the surveillance balloons, subject to certain conditions, this decision was not marked as a failure for the campaign. For one, the case brought national public attention to the issue of surveillance and raised questions about the impact of new technologies on fundamental rights.
The case also positioned the organizations as defenders of fundamental digital rights in Chile. When issues of surveillance balloons or drones arise in Chile, the press now seeks out this core group of organizations for comment first. Procedurally, the case also strengthened the mechanisms for collaborating, and prepared the organizations for the next campaign. The organizational structure amongst the teams remained flat; no central member or organization took the lead in coordinating the actions of others. Instead, teams communicated frequently, and trusted others to act in the interest of the overall campaign.
Overall, while the ruling may have been a battle lost, the visibility of the campaign could inspire other organizations in the region to consider strategic litigation as a tool to support the defense of human rights.
“I am very proud, because it was the first big privacy debate in our country,” said Romina Garrido, Executive Director of Datos Protegidos. “It’s expensive, it’s long, it’s hard, it’s exhausting, but it was worth it. We are no longer invisible.”