UPDATED: February 2023 | SOURCE: GW Law and TEDIC update; original report produced by Millicom with support from Hogan Lovells
Provision of Real-time Lawful Interception Assistance
Article 33 of the Paraguayan Constitution provides a right to intimacy. This inviolable right covers respect for private life, as well as personal and family intimacy. Article 33 specifies that protecting the intimacy and dignity of private persons includes guaranteed protections for private images of persons.
Article 36 provides a right to privacy of communications and freedom from interception. However, there is an exception by way of judicial order in cases specified by law and when such interception would be indispensable for clarifying matters within the competence of the relevant authorities. It also states that the law will determine the modalities of such interception, and that any evidence obtained in violation of these requirements is inadmissible.
Article 135 provides the right of all persons to access information and data about themselves or their assets that is stored in official or private registries of a public character. Because this is established through a Constitutionally guaranteed procedure, it provides a private right of action to access such data. It also permits persons to know the uses made of such information and data, and the purposes of such uses. If a person believes the use of such data wrongfully or illegitimately affects their rights, they may make a request before a competent magistrate to have such stored information or data rectified, updated, or destroyed.
CRIMINAL PROCEDURE CODE (LAW 1286/98)
Article 198 of the Criminal Procedure Code enumerates circumstances under which authorities may intercept or seize correspondence. This Article grants a judge the power to order the interception or seizure of any type of correspondence sent by, or intended for receipt by, an imputed individual.
Under Article 200 of the Criminal Procedure Code, judges of the Criminal Courts may, at the request of the Public Prosecutor’s Office (“PPO”), in exceptional circumstances and by reasoned order, authorize the interception of an accused’s communications by any technical means deemed necessary. In accordance with Article 36 of the Constitution, in order to be ‘exceptional’ the interception must be indispensable for the clarification of the matter at issue. The judge has discretion to determine who should execute the interception. The results of such an interception must be provided to the judge who authorized it. The judge must then order the destruction of any irrelevant material before any results are made available to the PPO, the accused and the accused’s legal counsel.
CRIMINAL CODE (LAW 1160/15)
Article 143 of the Criminal Code criminalizes activity that violates the privacy of a person through exposure of intimate personal activity, particularly related to family or sexual life, or the person’s state of health. Such violations are punishable by a fine.
Article 144 of the Criminal Code penalizes activity that violates a person’s right to private communications and their image. Such activity includes, without consent, (1) listening to another person’s communications through technical instruments, recording or storing such communications, or making such private communications immediately accessible to a third party, (2) producing or transmitting images from another person within your private premises or the private premises of others, or of another person outside their premises, or (3) making a recording or reproduction of the above available to a third party. Such violations are punishable by a fine or a prison sentence of up to two years.
Law 1881 of 2002 sets out offenses and procedures relating to narcotics and dangerous drugs. Under Article 88, the National Anti-Drug Secretariat (known as “SENAD”) or the PPO may apply for judicial authorization from the Criminal Court to intercept communications. Such an application must contain details of the types of communications to be intercepted, the technical means proposed for performance of the interception, and the objectives of the interception. The judge may also request further evidence in support of the application, including authorizing SENAD to photograph or film suspects and their movements.
To obtain the authorization, the applicant must show that the interception is necessary and appropriate for fulfilling its objectives. The order must explicitly identify the agents responsible for executing the interception and the duration of the authorization.
Under Article 89, the authorizing judge and the PPO must monitor and coordinate the interception operation as it progresses, and all evidence obtained must be made available to them.
EXECUTIVE ORDER 14135 OF JULY 15, 1996
Article 9 of Executive Order 14135, which regulates Telecommunications Law 642/95, states that it is a violation of the right to privacy for a third party who is neither the producer nor the intended recipient of a communication to delete, intercept, or alter its contents, alter its destination, publish it, or otherwise use it. This creates a duty on telecommunications services and affiliated persons who have access to or knowledge of the contents of the communication to adopt the most suitable measures to ensure that communications made through such services are kept private and secure.
LAW 5241/14 CREATING THE NATIONAL SYSTEM OF INTELLIGENCE
Law 5241 of 2014 establishes the National Intelligence System (SINAI), including its structure and functions and normative basis.
Article 3 of Law 5241/14 outlines fundamental principles that govern the activity of the SINAI. SINAI’s activities must guarantee full validity of rights and guarantees enshrined in the national constitution. It also clarifies that prior judicial authorization is required for requests of private information, and that any restrictions on rights that occur as a result of measures taken for intelligence work are proportionate to the intended objective. The law may also provide for exceptions to the requirement for judicial authorization for cases of serious threats to “collective security,” or to “public security and the rule of law.”
Article 6 of Law 5241/14 protects users’ rights to not have private communications or documents examined, read, reproduced, intercepted, or seized, except by court order. Article 6 covers telephone, postal, written, and copied communications, as well as all systems for sending or transmitting images, voices, data packets, files, information, records, or other documents not accessible to the public.
Article 24 of Law 5241/14 emphasizes that the various procedures for obtaining information under Title IV of the Law (Articles 24 through 27) are permissible only in exceptional circumstances when the SINAI cannot obtain such information through open sources. The standard set by Article 24 requires that information may only meet the exceptionality requirement if it is strictly indispensable to the fulfillment of the SINAI’s stated objectives of securing national peace and security, institutional, constitutional, and democratic stability, and the protection of the people from the threats of terrorism, organized crime, and drug trafficking.
Article 25 clarifies the scope of the procedures covered in Article 24. Specifically, Article 24 covers (1) intervention in telephone, computer, radio and correspondence communications in any of its forms; (2) intervention in computer systems and networks; (3) audiovisual electronic recording and listening; and (4) intervention in any other technological systems intended for the transmission, storage or processing of communications or information.
Article 26 allows the SINAI to apply to the Criminal Court of Guarantees in the jurisdiction where the interception is to take place for judicial authorization to intercept communications. Such authorization will only be granted when the information sought cannot be obtained from public sources and is strictly necessary to fulfil the state’s goals of safeguarding peace, national security and institutional stability, protecting the people from terrorism, organized crime and drug trafficking and defending the rule of democracy. The judge must provide a reasoned decision within 24 hours and the order must state the means to be used, the person(s) to whom the measures will apply and the duration of the authorization. The judge can authorize interception for periods of up to 90 days but this can be renewed once for an additional period of up to 90 days.
In accordance with Article 27, the SINAI must submit the results of the interception to the judge who ordered it. The judge must then review them to ascertain the relevant products of the interception and order the destruction of any irrelevant material.
LAW 12515/1996 CREATING THE MINISTRY OF THE INTERIOR
Law 12515/96 provides for the creation of the Intelligence Direction, under the authority of the Ministry of Homeland Secretary (known as “Ministerio del Interior”). As one of the agencies included under the SINAI, ), it has the power to request court orders for lawful interception of communications in order to preserve internal security in accordance with the procedures set out above.
Disclosure of Communications Data
CONATEL RESOLUTION 1350/02
Article 1 of the CONATEL Resolution 1350/02 obliges communication service providers (“CSPs”) to retain the inbound and outbound call records of its subscribers for a maximum of six months.
TELECOMMUNICATIONS LAW 642/95
Under Articles 89 and 90 of the Telecommunications Law 642/95, information relating to the contents and existence of the communications covered by Article 1 of the CONATEL Resolution (see above) cannot be disclosed except by court order. However, in its ruling N° 674/10, the Supreme Court of Justice declared that disclosure of communications metadata could be ordered not only by the court, but also by order of the PPO. In practice, Supreme Court rulings are not necessarily binding on subsequent rulings or on the courts more generally. Nevertheless, more recent cases have maintained the distinction between communications content, which can be accessed only pursuant to a judicial order, and metadata, which can be requested by the PPO and the court.
National Security and Emergency Powers
Article 288 of the Constitution states that in cases of armed international conflict or grave internal unrest that put the rule of the constitution or the government agencies created under it in imminent danger, Congress or the President may declare a state of emergency.
If declared by the President, the declaration must be validated by Congress within 48 hours. The declaration can last for an initial period of up to 60 days but may be extended by periods of up to 30 days with the approval of an absolute majority in both Congress and the Executive.
Article 238 also gives the President, with Congressional approval, the power to declare a state of national defence as discussed further below.
EXECUTIVE ORDER 14135 OF JULY 15, 1996 REGULATING LAW NO. 642 ON TELECOMMUNICATIONS
Article 14 of this order states that if a state of emergency is declared in accordance with article 288 of the Constitution, all telecommunication service operators must prioritise the transmission of the communications of the National and Civil Defence Systems.
The National Telecommunications Commission, through the Commander in Chief of the Armed Forces, may also take direct control of telecommunications services. However, this does not give any government agency the power to disregard the right to privacy of communications provided by article 36 of the Constitution. Therefore any interception measures must still be subject to the processes and authorisation detailed above.
There is no legal right on the part of telecommunications providers to appeal or seek compensation in relation to any of these decisions.
LAW 1337/97 REGARDING NATIONAL DEFENCE AND INTERNAL SECURITY
Article 16 allows the President, on declaration of a state of national defence, to deploy, integrate and mobilise all national resources for the purpose of national defence. Article 20 states that, in such a situation, the President may order the requisition of services or goods to satisfy the needs of national defence. However, this does not give any government agency the power to disregard the right to privacy of communications provided by article 36 of the Constitution. Therefore any interception measures must still be subject to the processes and authorisation detailed above.
Oversight of the Use of Powers
Article 288 of the Paraguayan Constitution outlines and explains the circumstances under which the government may declare a State of Exception to the rights enshrined in the Constitution. These circumstances include an armed international conflict (formally declared or not), or a grave internal commotion that imminently endangers the authority of the Constitution or the regular functioning of the organs created by it. If declared by the President, the declaration must be validated by Congress within 48 hours. Under Article 288, a State of Exception may be declared for sixty days and extended for an additional thirty days only pursuant to an absolute majority vote by both legislative chambers. In the case of a parliamentary recess, the Executive may declare a State of Exception for no longer than thirty days, and such a declaration must be submitted to the Congress within eight days for approval or rejection. A declaration of a State of Exception must include a statement of facts and reasons for its invocation, the duration of its enforcement, the territory it will affect, and the rights it will restrict.
Article 238 also gives the President, with Congressional approval, the power to declare a state of national defense as discussed further in Law 1337/97 below.
LAW 1337/97 REGARDING NATIONAL DEFENCE AND INTERNAL SECURITY
The powers detailed in Executive Order 14135 below are pursuant to Articles 16 and 20 of Law 1337/97. Article 16 allows the President, on declaration of a state of national defence, to deploy, integrate, and mobilise all national resources for the purpose of national defence. Article 20 states that, in such a situation, the President may order the requisition of services or goods to satisfy the needs of national defence. However, this does not give any government agency the power to disregard the right to privacy of communications provided by article 36 of the Constitution. Therefore any interception measures must still be subject to the processes and authorisation detailed above.
EXECUTIVE ORDER 14135 OF JULY 15, 1996 REGULATING LAW NO. 642 ON TELECOMMUNICATIONS
Article 14 of this Order states that if a state of emergency is declared in accordance with Article 288 of the Constitution, all telecommunication service operators must prioritize the transmission of the communications of the National and Civil Defense Systems.
Under such a declaration, the National Telecommunications Commission, through the Commander in Chief of the Armed Forces, may also take direct control of telecommunications services. However, this does not give any government agency the power to disregard the right to privacy of communications provided by Article 36 of the Constitution. Therefore any interception measures must still be subject to the processes and authorization detailed above.
There does not appear to be any legal right on the part of telecommunications providers to appeal or seek compensation in relation to any of these decisions.
SUPREME COURT RULING N° 674/10
As discussed in the above explanation of mandated disclosure of non-content communications data, Supreme Court ruling N° 674/10 declared that disclosure of communications metadata could be ordered not only by the court but also by order of the PPO. In practice, Supreme Court rulings are not necessarily binding on subsequent rulings or on the courts more generally. Nevertheless, more recent cases have maintained the distinction between communications content, which can be accessed only pursuant to a judicial order, and metadata, which can be requested by the PPO and the court.
PROTECTION OF CHILDREN AND ADOLESCENTS AGAINST HARMFUL INTERNET CONTENT (LAW 5653/2016)
Article 3 of Law 5653/2016 provides that ISPs must provide customers with free software that can detect, filter, classify, and eliminate or block content deemed harmful to children and adolescents.
Article 5 of Law 5653/2016 provides that public or private educational establishments, commercial establishments, or other public access spaces that provide internet access services must install and activate free protection software that complies with the technical specifications laid out by the National Secretariat of Information and Communication Technologies in order to protect against content deemed harmful to children and adolescents.
Articles 7 and 8 create the National Observatory for the Protection of the Rights of Boys, Girls and Adolescents on the Internet (ONAI) and establishes its functions, which includes developing and updating the Digital Bank of Inappropriate Sites and Content for Children and Adolescents.
Telecommunication Users’ Protection Regulation
Under Article 7 of the Regulation, as amended by CONATEL Resolution 583/2020, telecommunication service providers must include a term in each service contract which permits the provider to block access when requested by the National Police. This provision has been used to require that certain accounts within an application be blocked. CONATEL leadership have also publicly indicated that the provision would enable a judicial order to block an entire application which engaged in censorship of its users.
Oversight of the Use of Powers (Censorship-related)
LAW OF JUDICIAL ORGANISATION (LAW 879/1981)
Under Article 9 of the Law of Judicial Organisation, judges cannot refuse to administer justice. However, only in cases of insufficiency, obscurity or silence of the law, can the provisions of analogous laws and the general principles of law apply, taking into consideration judicial precedent.
Publication of Laws and Aggregate Data
PUBLICATION OF LAWS
There are no legal restrictions in Paraguay on the publication of laws or information relating to them.
PUBLICATION OF AGGREGATE DATA
In accordance with article 36 of the Constitution, CSPs are prohibited from publishing any information, including aggregate data (such as volume of interception requests), in relation to the interception powers detailed above.
Furthermore, article 22 of Law 5241 states that documents, records and files relating to intelligence and counterintelligence activities must be kept confidential for a period of up to 20 years as determined by the SINAI. Article 23 goes on to state that any institutions which become aware of such documents must keep both the existence and content of such documents confidential until they are declassified by the SINAI.
In relation to SENAD investigations, article 91 of Law 1881 states that all parties involved in covert operations must keep information relating to them strictly confidential.