UPDATED: February 2018 | SOURCE: Legal Advice from Hogan Lovells
Provision of Real-time Lawful Interception Assistance
PROVISIONS GUARANTEEING THE RIGHT TO PRIVACY AND INVIOLABILITY OF COMMUNICATIONS
(a) Articles 21 and 25 of the Bolivian Constitution of 2009
Article 21 of the Bolivian Constitution guarantees the right to privacy.
The first paragraph of Article 25 guarantees the secrecy of private communications of all forms, except as authorized by a Court.
The second paragraph of Article 25 establishes that correspondence, private papers and private statements contained in any medium are inviolable and may not be seized except under a Court order in the course of a criminal investigation.
The third paragraph of Article 25 establishes that no public authority nor any person or organization can intercept private conversations or communications through an installation that controls or centralizes them.
The fourth paragraph of Article 25 establishes that evidence obtained, other than by Court order, in breach of the secrecy of correspondence and communications, in whatever form, has no legal effect and cannot be used in judicial proceedings.
As the Bolivian Constitution in its present form is relatively new, the precise scope of some of the provisions set out in Article 25 has not yet been the subject of any higher judicial ruling or interpretation.
(b) Article 5 of Law 164 of 8 August 2011 on General Telecommunications, Information, Technologies and Communications (the “GTITC Law”)
Under article 5 of the GTITC Law, telecommunications and postal communications are inviolable. They may not be intercepted or interfered with, save as specified by law.
(c) Supreme Decree 1391 of 24 October 2012 providing General Regulations to the GTITC Law (the “GTITC Regulations”)
Under article 174 of the GTITC Regulations, telecommunications operators and communication services providers (the relevant communications service providers, or “CSPs”) must guarantee the inviolability and secrecy of communications, except where interception is ordered by the court.
This exception includes the investigations conducted about individuals presumably linked to acts of drug trafficking, as is set forth by Art. 21 of Supreme Decree 3434.
Article 174 also provides that no public authority, individual or entity, has the right to use and/or establish means to intercept private communications. It is an infringement of that article for any person other than the one at the receiving or emitting end to intercept, interfere, obstruct, alter, deviate, publish, etc. the contents of private communications.
Article 174 also states that it is a violation of the secrecy of communications for a person to access and disclose the contents of a communication made pursuant to public service, when that access is facilitated by that person’s function or status.
(d) Articles 13, 71 of the Criminal Procedure Code (the “Code”)
Interception ordered by any judicial authority must comply with articles 13 and 71 of the Criminal Procedure Code.
Under article 13, evidence is only admissible if it has been obtained by legal means under the procedures established by the Bolivian Constitution and the Criminal Procedure Code. Evidence obtained in violation of fundamental rights or through illegal means will not be admissible.
Article 71 reiterates that the judicial authorities cannot use against a defendant any evidence obtained in breach of the Constitution or international covenants and treaties or any related laws.
Under article 7 of the Code, precautionary and restrictive measures such as the use of interception, can only be used in exceptional cases. Whenever there is doubt about whether or not to apply such measures, or any other measures restricting the defendant’s rights, the measures used must be those most favourable to the defendant.
COURT ORDER OF INTERCEPTION OF COMMUNICATIONS UNDER ARTICLES 171 AND 221 OF THE CRIMINAL PROCEDURE CODE AND ARTICLES 174 AND 176 OF THE GTITC REGULATIONS
Article 171 sets out a general criminal principle in Bolivian law under which a court can admit as evidence all elements that help ascertain the truth about the accused’s guilt and character. Evidence will generally be admitted if it relates, directly or indirectly, to the object of the investigation, and may be useful to ascertain the truth. The court can limit the rules of evidence available when applying them would lead to manifestly excessive or irrelevant results.
An order relating to interception of communication may only be requested by the prosecuting attorney in the context of a criminal investigation, as authorized by law.
From a practical point of view, the following steps would be taken to obtain such an order:
- The prosecuting attorney (or defendant, or party to a civil suit) makes a request for interception of communications to the judge allocated to the trial. It should be noted that a judge could also decide to grant such an order of his own initiative, although this rarely happens.
- The court order is then addressed directly to the CSP.
ART. 41 OF LAW 263 OF 2012 AGAINST HUMAN SMUGGLING AND TRAFFICKING (the “Human Trafficking Law”)
Article 41 of the Human Trafficking Law is the only legislation that specifically allows for lawful interception under the authority of a court order, and does so only in the context of criminal investigations related to human trafficking.
ARTICLES 11, 12, 13 AND 14 OF LAW 913 DATED MARCH 16th 2017, LAW AGAINST ILLEGAL TRAFFICKING OF CONTROLLED SUBSTANCES
Law 913 against Illegal Trafficking of Controlled Substances includes new instruments for criminal investigations relating to illegal drugs: one allows the interception of telecommunications for crimes related to controlled substances, with the following conditions:
- request is issued by a public prosecutor appointed to the competent Judge,
- personal and joint responsibility of the personnel for any action taken place beyond the authorization granted for the interception,
- a maximum term of the interception for a 3 month period, to be extended only once,
- the procedure and protocols for this investigation resource shall be determined by a specific regulation currently not communicated.
RECENTLY ISSUED WAS THE REGULATION RELATED TO THE LAW AGAINST ILLEGAL TRAFFICKING OF CONTROLLED SUBSTANCES, INCLUDED WITHIN SUPREME DECREE NO. 3434 DATED DECEMBER 13, 2017 (DS 3434).
Chapter IV of such norm, establishes that the interception of any Telecommunication service is possible, whether during the communication itself, as well as with the data thereof, without being relevant the origin, service or technology being used, with a court order and regarding individuals who could be linked to an act of drug trafficking.
In this manner, Art. 22 of such norm has established that the call log, as well as the prior and subsequent associated data, must be provided by the service operators and providers in an unrestricted manner and only with the prior order of a competent authority. The competent authority, pursuant to Paragraph I of Art. 28, is the Special Prosecutor who requests the interception to the competent Judge, with the participation of the Police.
The court order must be fulfilled following certain parameters such as: i) providing the police necessary access to guarantee a continuous and permanent interception; ii) granting the aligned and real-time call log and the associated data information generated by its system, technology or user base, regarding the line or equipment that is object of interception; iii) granting the aligned and real-time geo-referential location with the most precision possible, radio base data, cell identification, signal strength, and other data which could be generated by its technology, including its network data; iv) keeping full reserve of the interception processes ordered by the judicial authority; v) preserve and archive all of the information generated within their systems for a period of 5 years, in accordance to the norm in effect.
Art. 30 of DS 3434, establishes that the interception resolution must be notified to the operator, to the special prosecutor and to the investigators, within a term not greater than 24 hours. The operators must make the interception viable in an immediate manner.
Art. 31 of DS 3434, establishes the possibility of granting the process a specially accelerated processing when the authorities place over their acts a visible label of Urgent. The Second paragraph of Art. 31, establishes that the Operators must take reasonable precautions to provide a timely response even during non-working days or hours.
Art. 23 of such norm establishes the possibility of the police being able to conduct direct interceptions through other mechanisms, with technology financed by the own entity or other entities.
For this effect, Art. 25 establishes that telecommunication service operators and providers shall implement an access point for the police.
Disclosure of Communications Data
ARTICLE 175 OF THE GTITC REGULATIONS
All the principles set out above apply equally to metadata, and there is no specific provision regulating the disclosure by CSPs of communications data.
Article 175 states that it is not a violation of the secrecy and inviolability of communications for CSPs to provide communications data (details of calls, for example) required by court order only under a criminal investigation.
ARTICLE 71 OF LAW 2492 DATED 2 AUGUST 2003 (the “Tax Code”)
Under article 71 of the Tax Code, the IRS can request certain entities (such as CSPs, banks, import/export agents, customs etc.) to act as ‘information agents’. As information agents, these entities are under an obligation to provide certain types of information on their biggest clients, usually in the form of a monthly report, as requested by the IRS in the fight against tax evasion and fraud.
The tax authorities do not normally require the disclosure of data content, or even detailed disclosure of metadata. Instead, agents are obliged to provide billing and payment information relating to the volume of communications of those biggest clients to allow the tax authorities to compare the financial information declared by those clients to the volume of communications and identify any discrepancy that could indicate tax fraud.
The IRS does not need a court order to obtain this information. Instead, pursuant to Article 64 of the Tax Code, it must issue a specific type of resolution called a ‘normative board of directors resolution’ (the board here being the board of the tax authority).
ART. 22 OF SUPREME DECREE 3434 DATED DECEMBER 12, 2017
This norm establishes the duty of operators and providers to supply data preceding and subsequent to the interception in an unrestricted manner, with the prior order of a competent authority, being the Judge linked to a request by the special prosecutor, as was previously explained.
National Security and Emergency Powers
ARTICLE 199 OF THE GTITC LAW
Article 119 of the GTITC Law envisages two scenarios: i) a threat to State security, and ii) declared state of emergency or disaster subject to an Emergency Plan for Telecom sector made by ATT.
In the case of a threat to State security, CSPs must cooperate and make available their networks to public authorities at no cost and in a timely manner.
In case of emergency or disaster, the ATT would issue an administrative resolution requesting CSPs to give access to their network. This is done without judicial oversight or court order.
There is no known case of a threat to State security or state of emergency being used as a basis for interception of communications.
ARTICLES 22 AND 23 OF LAW 2140 OF 25 OCTOBER 2000 ON THE REDUCTION OF RISKS AND DISASTERS AND EMERGENCIES (“Law 2140”)
As mentioned at 3.1 above, Bolivian law distinguishes between threats to State security, and cases of emergency or disaster. The procedure in the case of a state of emergency can only be triggered after a Supreme Decree is issued by the President of Bolivia under article 23 of Law 2140.
Under article 23 of Law 2140, in case of emergencies and disasters the President, on recommendation from the National Council for the Reduction and Attention of Disasters and/or Emergencies (“CONARADE”), may declare a state of disaster and/or emergency by issuing a Supreme Decree. This Decree must describe the type and magnitude of emergency, and whether it is taking place at a national, departmental or municipal level.
In the case of emergency or disaster, therefore, the process would be, first, for the President to declare a state of emergency, then, second, for the ATT to use its powers under article 119 of the GTITC Law to request the use of private networks.
A threat to State security must also be declared through a Supreme Decree. In cases of emergency, various entities such as CONARADE, the ATT and the National System for Risk Reduction and Emergencies and Disasters (“SISRADE”) play a significant role in triggering and shaping the response to the emergency. By contrast, in the case of a threat to State security, the President has more discretion (as there is no definition of a state of threat to State security) and in deciding what can be asked of CSPs. There are no precedents for using this power.
Oversight of the Use of Powers
ARTICLES 167 AND 116 OF THE CRIMINAL PROCEDURE CODE
Under article 167 of the Criminal Procedure Code, evidence that does not comply with conditions enshrined in the Constitution and international covenants and treaties cannot be used to justify a court order, unless the defect can be remedied. In case of non-compliance, parties can challenge judicial decisions or defects of procedure that affect them adversely.
Any order issued by a court can ultimately be reviewed by the Supreme Court. How far-reaching that oversight is has not been tested yet, as there are no known cases of review of telephone tapping, either by the Supreme Court or the Constitutional Tribunal.
The same occurs in case of orders issued within a criminal investigation procedure for the Illegal Trafficking of Controlled Substances, within the terms contained herein.
ARTICLE 116 OF THE CRIMINAL PROCEDURE CODE
Under article 116, proceedings are normally heard in public which provides for some level of scrutiny. The court may order proceedings to be held in private, but it must do so by a reasoned court order.
ARTICLE 64 OF THE ADMINISTRATIVE PROCEDURE LAW 2341 (the “Administrative Procedure Law”)
Decisions by the ATT to revoke a CSP’s license under the GTITC Law can be challenged by that CSP under articles 64 to 70 of the Administrative Procedure Law.
Under articles 64 and 65, such challenge must first be made before the same administrative authority, i.e. the ATT, within ten days of service of the revocation. The ATT then has ten days to make a decision. If further challenge is requested, under article 66, the CSP then has ten days after the ATT’s second decision to appeal to the highest administrative authority, i.e. the Ministry of Telecommunications. The Ministry then has a further 90 days to make a decision.
Under article 70, once this line of administrative recourses has been exhausted the interested party may challenge the decision of the Ministry before the Superior Justice Tribunal (i.e. the Supreme Court) through what is known as ‘administrative contentious procedure’.
Publication of Laws and Aggregate Data
PUBLICATION OF LAWS
There is no legislative provision prohibiting or explicitly allowing descriptions of legal powers and related information.
Under article 165 of the Constitution, laws are publicly accessible and their entry into force is conditional upon their publication in the Official Legal Gazette. This general constitutional norm applies to legislation relating to interception and surveillance powers.
PUBLICATION OF AGGREGATE DATA
Bolivian law is silent on the specific question of whether CSPs can publish aggregate data relating to the number of interception or metadata requests they have received from government agencies, or how many interceptions of communications were conducted.