"Argentine President Kills Decree That Allowed Officials to View E-Mails". by David Haskel. (Reproduced with permission from Privacy & Security Law Report. Volume 4, Number 16. April 18, 2005. Copyright 2005 by The Bureau of National Affairs, Inc.).

BUENOS AIRES--Argentina's President Nestor Kirchner April 12 shelved a regulation ordering telecommunications companies to make software and hardware upgrades to store clients' data for 10 years.

The regulation--made possible by Decree 1563/2004 implementing regulation of Telecommunications Law 25873/2003--would also have required such companies to hand over sensitive information to the national intelligence service when requested to do so.

Both the 10-year data storage requirement and the prospect of snooping on e-mails and online chat exchanges triggered a widespread outcry from lawmakers, the communications industry and citizens worried about the civil rights implications of the regulation.

Cabinet chief Alberto Fernandez said the aim of the intended purpose of the rule was to block the widespread use of cellular phones by kidnappers asking for ransom, not to authorize spying on Argentine citizen e-mails.

When Kirchner--who at the time was paying an official visit to Germany--realized that the rule may have had unintended consequences, he ordered the decree suspend, Fernandez told reporters April 12. Fernandez said that upon his return to Argentina the president would sign a new decree officially killing Decree 1563/2004.

"Neither the law nor the decree were conceived to look into the contents of calls, e-mails, or chats," Fernandez said. "Obviously that was not the intention of the government when it issued regulation to the legislation, since it is absolutely committed to respecting people's rights."

Broad Definition of Communication

The regulation was issued last November and was to have become effective July 1. Its civil rights implications initially went unnoticed, but in the past few weeks they caused a major uproar as the deficiencies in the rule became progressively more apparent to legal experts and the media.

Opposition lawmakers confirmed the whole issue boiled down to regulation departing from the original aim of the legislation. "What we were seeking [at the time the law was passed] was to make cellular telephony providers supply immediate information about calls related to kidnappings or about calls that were being tracked down [by authorities]," Deputy Gracia Jaroslavsky of the opposition Radical Party told local radio.

Experts pointed out that the law failed to specifically mention cellular telephony. Art. 1 only talked about "communications" provided by "telecommunication services providers."

Decree 1563/2004 defined "telecommunications" as "Every transmission or reception of signs, signals, written material, images, sounds, or information of any nature through wire, electric cables, the atmosphere, radio electricity, optical means and/or other means, either electromagnetic or of any other kind, both existent or to be created in the future."

Alarmed at the muscle the decree could give the government, constitutionalist Daniel Sabsay called it "A violation of the right to privacy, a police raid without a judicial search warrant to back it up."

Internet legislation expert Gustavo Tanús also lashed out at the requirement to Internet service providers and other telecommunications players to store data for a full decade. "The term demanded by the law is way too long, and it is both technically and economically difficult for some companies in the industry to comply with," he told BNA.

In January, Argentina's Chamber of Databases and Online Services sought a court injunction to try to stop the decree, questioning the legitimacy of the move and warning that many small ISPs would be unable to face the extra cost involved. The request was still being considered by judges when Kirchner killed it.

The text of Law 25873/2003 is available, in Spanish at http://infoleg.mecon.gov.ar/txtnorma/92549.htm. The text of Decree 1563/2004 is available at http://infoleg.mecon.gov.ar/txtnorma/100806.htm

By David Haskel