Provision of Real-time Lawful Interception Assistance
Disclosure of Communications Data
Oversight of the Use of Powers
Censorship-related Powers

UPDATED: | SOURCE: Hiperderecho

Provision of Real-time Lawful Interception Assistance

LEGISLATIVE DECREE N° 1182 – Legislative Decree that regulates the use of data derived from telecommunications for the identification, location, and geolocation of communication devices in the fight against crime and organized crime.

Article 4.3 of the Legislative decree n° 1182 regulates concessionaires of public telecommunications services or public and private entities related to these services. Within 24 hours of request by the specialized unit of the Peruvian National Police, the entities are obliged to promptly provide location, geolocation, or tracking data. The entities must be available 24 hours a day, 365 days a year, and non-compliance with the requirement may result in administrative, civil, and criminal liabilities.

LAW No. 27697 – Law granting the prosecutor the authority to intercept and control communications and private documents in exceptional circumstances

Although article 2.10 of the Political Constitution of Peru protects the secrecy and inviolability of private communications and documents, Law No. 27697 grants the Public Prosecutor the power to intercept and control private communications and documents in exceptional cases outlined below. It also develops the constitutional power, in article 2.10 of the Political Constitution of Peru, for judges to hear and control communications of individuals subject to preliminary or jurisdictional investigation.

According to Article 1, the authority provided for in this law may only be used in the following crimes:

Kidnapping;
Human trafficking;
Child pornography;
Aggravated robbery;
Extortion;
Illegal drug trafficking;
Illegal migration trafficking;
Crimes against humanity;
Attacks against national security and treason;
Embezzlement;
Corruption of officials;
Terrorism;
Tax and customs offenses;
Money laundering;
Computer crimes;
In Articles 153-B, 153-D, 153-F, 153-G, 153-H, 153-I, 153-J, 179, 180, 181, and 181-A of the Penal Code.

Article 2 stipulates the procedure and the requirements. Under Article 2.7, the authorization request must be properly supported and contain all necessary information, including any evidence that would enable the judge to decide on the request. The judge will then issue a resolution authorizing or denying the interception of communications. The authorization lasts as time strictly necessary, not to exceed the length of the investigation (for postal interceptions) or sixty days (for communication interception). Under exceptional circumstances, the request may be extended by successive periods, if requested by the Prosecutor and approved by the Judge. There is no limit on how many successive periods a request can be extended.

Under Article 2.8, the request and authorization must specify the type of interception and control required based on the nature of the communications. This includes consideration of factors such as:

a) Whether the communication requested is one specified, one likely to happen in an indefinite set, or one that will occur under certain circumstances.
b) Whether the communication has already taken place or will occur in the future.
c) Whether the communication is accessible, closed, or encrypted.
d) Whether the identity of the sender or recipient of the communication, or any other person, event, or circumstance mentioned in the communication, has been concealed. Or there are obstacles by malicious parties in accessing or identifying the communication or the information mentioned in it.

LEGISLATIVE DECREE N° 957 – Peruvian Criminal Procedure Code

Under Article 226 of the Peruvian Criminal Procedure Code, correspondence sent by or to an accused person, or those that are believed to be sent by or to an accused person under special context, can be intercepted, seized, and opened at the request of the Public Prosecutor and approval of a judge during Preparatory Investigation. This article applies to letters, packages, telegrams, or other forms of postal or telegraphic correspondence, public and private.

Interception and seizure of the correspondence is only allowed when deemed necessary by the judge for the proper investigation of the case. The measure will be kept strictly confidential and without the knowledge of the affected person. It will be in effect for the time strictly necessary and not longer than the duration of the investigation. The interception can also be used to obtain copies or backups of electronic correspondence related to the crime, where the accused is one of the parties. In some cases, communication from one who is known to represent the accused can also be intercepted.

There are no legal standards to determine the necessity of the initial request, but it can be subjected to constitutionality review and considered under the principle of proportionality.

Article 230 of the Peruvian Criminal Procedure Code stipulates that the request can be made only when the prosecuting crime has a sentence greater than 4 years of deprivation of liberty and when it is strictly necessary.

Article 230 also states that the Prosecutor’s Office, on its own initiative or at the request of an investigative function in the National Police, can request the Judge of the Preparatory Investigation to monitor, intervene, and record telephone, radio, internet or other forms of communication, as well as the records of data derived from the communications.

COUNCIL RESOLUTION NO. 137-2021-CD/OSIPTEL – Technical standard for the implementation of the automated measurement system for verifying internet access service by OSIPTEL

A Council Resolution in Peru functions similarly to an Executive Order in other jurisdictions. Article 4 of the resolution establishes that operators are obligated to allow real-time access to the telecommunications regulatory body in Peru (Organismo Supervisor de la Inversión Privada en Telecomunicaciones, OSIPTEL) to perform quality of service measurements for mobile internet.

This information includes phone number, IMSI, IMEI, battery level, brand and model of the phone, georeferenced location (latitude and longitude) with at least 5 decimal digits, cell ID of the connected device, technology of the connection, signal strength, data capacity and consumption, identification of traffic, date and time of the information, number of CPUs in the device, and RAM and ROM utilization of the device.

Users Rights

PERUVIAN CONSTITUTION
Article 2.10 of the Peruvian Constitution states that every person has the right to the privacy and inviolability of their private communications and documents. Communications, telecommunication, or their instruments can only be opened, seized, intercepted, or monitored by a motivated judicial order with legal safeguards. Confidentiality of matters not related to the examination must be maintained.

Private documents obtained through violation of this provision are inadmissible. Books, receipts, and administrative or financial documents are subject to inspection or audit by the competent authority in accordance with the law. Without judicial order, the inspection or audit cannot escalate to removal or confiscation.

Article 2.6 of the Peruvian Constitution affirmed its citizen’s right to ensure information services are prohibited from supplying information that affects personal and family privacy, whether it is computerized or not, and whether it is public or private.

SUPREME DECREE N° 013-93-TCC – Telecommunications act

Article 4 of the Telecommunications Act affirms that every person has the right to the inviolability and confidentiality of their telecommunications. Currently, the Ministry of Transport and Communications (MTC) is responsible for protecting this right.

Law N° 29773 – Personal Data Protection Act

The Personal Data Protection Act secures the fundamental right to the protection of personal data outlined in Article 2.6 of the Peruvian Constitution. The law seeks to ensure that personal data is handled properly, in a manner that respects other fundamental rights recognized in the Constitution.

Under this law, “Personal data” is defined as “any information about a natural person that identifies him or her or makes him or her identifiable through means that can reasonably be used.”

Notice to the Individual

LEGISLATIVE DECREE N° 957 – Peruvian Criminal Procedure Code

Article 231.3 establishes that once the intervention has been executed and immediate investigations related to its result have been carried out, the affected party will be informed of all the actions taken and may request a judicial review within three days of being notified. “Intervention” under this context includes interception, recording, or registration of telephone communications or other forms of communication and geolocation of mobile phones.

The duration of the measure, as well as its purpose, scope, and objective, will be laid out in the Prosecutor’s request. In other words, once the investigation is complete and consequently, achieving the purpose of the intervention, the intervened party will be notified.

The notification to the affected party will only be possible if it would not obstruct the investigation nor would it threaten the life or physical integrity of third parties. Interventions may only be kept secret after investigations have concluded if the judge has agreed and set a deadline for the secrecy to expire.

This investigation is carried out in the Preparatory Investigation, which is that stage in which, after the Preliminary Investigation (conducted during awareness of the illegal act and search for means of evidence), the Prosecutor arranges or carries out more procedures. After the investigation and the conclusion of this stage, the Prosecutor will decide whether to file an accusation with the Judiciary to begin the trial or not to file an accusation and archive the investigation, if they fail to find the necessary evidence to formulate a conviction. To proceed to the trial stage, a sufficient level of suspicion of the commission of the crime is needed.

Disclosure of Communications Data

LEGISLATIVE DECREE N° 957 – Peruvian Criminal Procedure Code

Article 231.2 establishes that recordings conducted during a criminal investigation will be preserved until the end of the corresponding criminal process. After the process, the Prosecutor or the Judge may order the transcription of segments of the communications made by relevant personnel in the corresponding record.

The Second Complementary Final Provision establishes that telecommunications public service concessionaires, public entities related to these services, and private entities in the telecom sector must retain data derived from telecommunications during the first twelve (12) months in computer systems that allow for online and real-time consultation and delivery. After said period, they must retain said data for an additional twenty-four (24) months electronically.

SUPREME DECREE N° 007-2020-IN -Supreme decree that approves the regulation of Legislative Decree No. 1218, which regulates the use of video surveillance cameras, and of Law No. 30120, Law for supporting citizen security with public and private video surveillance cameras, and enacting other provisions.

Article 17.2.b. establishes that entities (public or private) that have surveillance cameras must store the recorded images, videos, or audio recordings for a minimum of forty-five (45) calendar days, unless otherwise specified in sectorial regulations. There is no maximum period stipulated by law, and under exceptional circumstances, these recordings can be saved longer than previously established if the recording contains information about the commission of crimes.

COUNCIL RESOLUTION No. 137-2021-CD/OSIPTEL -Technical standard for the implementation of the automated measurement system for verifying internet access service by OSIPTEL

Article 4 establishes that operators have the obligation to allow real-time access to the telecommunications regulatory body in Peru (Osiptel) to perform quality of service measurements for mobile internet.

LEGISLATIVE DECREE N° 1141, FOR STRENGTHENING AND MODERNIZING THE NATIONAL INTELLIGENCE SYSTEM – SINA AND THE NATIONAL INTELLIGENCE DIRECTORATE – DINI

Article 35 stipulates that any information obtained by the National Intelligence System (SINA) for intelligence purposes that impacts fundamental human rights and privacy but is unnecessary for its objective of national security, must be destroyed by the official in the responsible subsidiary of SINA.

Remedies

PERUVIAN CONSTITUTION
Article 200.1 recognizes the process of habeas corpus, initiated in case of violation or threat of violation of personal liberty. In a criminal case, defendants may use a habeas corpus petition when all appeals are exhausted to challenge an improper communication interception since personal liberty is at risk in a defective criminal process.

Article 200.3 recognizes the process of habeas data, initiated in case of violation of the right to the protection of personal data. One may start a habeas data petition when all appeals are exhausted to demand ceasing certain data activities if the processing entity improperly uses one’s data or violates their privacy.

LEGISLATIVE DECREE N° 635 – Peruvian Criminal Code

Chapter IV of Title IV of Book Two establishes the crimes related to the violation of the secrecy of communications, which includes regulating the conduct of State officials. Following the law in the chapter, officials who misuse the interception of communications would be criminally liable.

LEGISLATIVE DECREE N° 957 – Peruvian Criminal Procedure Code

Article 228 indicates that once the communication interception procedure is completed and immediate investigations related to its results are carried out, the affected party will be informed of all actions taken and may request a review of the interception within three days of being notified.

MINISTERIAL RESOLUTION N° 010-93-JUS – Civil Procedural Code

Article 118 establishes that the officials from the Public Prosecutor’s Office are civilly liable when they act with negligence, fraud, or deceit in the exercise of their functions. The procedure is subject to the same process as civil liability for the judges. It is possible to file a lawsuit under this article against the Public Prosecutor’s Office for damages caused by illegal wiretappings and seek compensation. However, no known cases exist at the time of the report.

Oversight of the Use of Powers

LEGISLATIVE DECREE N° 957 – Peruvian Criminal Procedure Code

Articles 226 and 228 of the Peruvian Criminal Procedure Code state that a judicial order may be requested when it is indispensable for the proper clarification of the facts being investigated. This measure, strictly reserved and without the knowledge of the affected person, will be prolonged for the strictly necessary time, which will not be longer than the investigation period.

Upon completion of the due diligence and immediate investigations with its result, the affected party will be informed of all actions taken and may request a reexamination within three days of being notified. This means that, in principle, notification of the interception of the communication is not allowed until the proceedings have been completed.

Article 230.6 states that the interception of communications cannot last longer than sixty days. Under exceptional circumstances, the interception may be extended for successive periods, under a substantiated request from the Prosecutor and a motivated approval from the Judge of the Preparatory Investigation obtained must be made available to them. There are no limits to how many successive periods can be extended.

Article 5.4 establishes that the judge who validates the geolocation interception measure will set a period not exceeding sixty days. In exceptional circumstances, the interception may be extended for successive periods with a substantiated request from the Prosecutor and approved by the judge. There are no limits to how many successive periods can be extended.

LAW No. 27697 – Law granting the prosecutor the authority to intercept and control communications and private documents in exceptional circumstances

Article 2.7 states that the interception request under this law, submitted by the Prosecutor, must be properly supported and contain all necessary information, including circumstantial elements that allow the judge to issue authorization based on their judgment. After verifying the requirements established in the first paragraph of this section, the judge will issue a warrant authorizing the implementation of the measure for the time strictly necessary, not to exceed the length of the investigation (for postal interceptions) or sixty days (for communication interception). For communication interventions, it is extendable, under exceptional circumstances, by successive periods at the request of the Public Prosecutor and a motivated judicial approval. There are no limits to how many successive periods can be extended.

LAW N° 29773 – Personal Data Protection Act

Article 13.8 states that the processing of personal data related to the commission of criminal or administrative offenses can only be carried out by competent public entities, except for management delegation agreements under Law N° 27444 (“the General Administrative Procedure Law”) or its equivalent that specify procedures in special cases. Once the criminal, judicial, police, and administrative records are concluded at the end of the process, these data cannot be provided unless they are required by the judiciary or the public prosecutor’s office in accordance with the law.

Censorship-related Powers

SUPREME DECREE N° 014-2013-MTC – Regulation of Law No. 29904, Law for the Promotion of Broadband and the Construction of the National Fiber Optic Network

Article 6 recognizes the principle of net neutrality. Under this article, internet service providers shall respect net neutrality, which means that they cannot arbitrarily block, interfere, discriminate, or restrict any user’s right to use an application or protocol, regardless of its origin, destination, nature, or ownership. The Supervisory Agency for Private Investment in Telecommunications (OSIPTEL) determines what behaviors will be considered arbitrary.

DIRECTIVE COUNCIL RESOLUTION No. 165-2016-CD / OSIPTEL – Net Neutrality Regulation

Articles 13 and 18 specify the circumstances under which website blocking or similar actions are legal.

The authorized methods for blocking web pages are classified into three categories:

Authorized Measures
Emergency Measures
Court-Ordered Measures

The authorized measures are:

Management of IP Addresses.
Duration of Dynamic Session on the Network.
Temporary Storage of Content (CDN).
Filtering and/or Blocking of Services and/or Applications at the subscriber’s request.
Filtering and/or Blocking of Services and/or Applications in compliance with contractual obligations with the State or administrative acts issued by competent authorities in the exercise of their functions; or, in accordance with a law.
Other measures, provided that they do not contravene the guiding principles of Net Neutrality.

LAW N° 30999 – Cyberdefense Law

Article 12 of the Cyber Defense Law establishes the conditions under which the Armed Forces can take control of national critical assets and key resources. This includes telecommunications infrastructure and services. This power has not been used in practice.

SUPREME DECREE No. 035-2019-MTC – Supreme Decree specifying provisions regarding the Public Transport Service for Passengers in Unauthorized Small Vehicles and establishing provisions for blocking applications and/or websites

Article 3 establishes the procedure through which the Ministry of Transportation and Communications (MTC) can order the blocking of applications and/or web pages that are available people on motorcycles.

The General Directorate of Multimodal Transport Policies and Regulation requests the blocking of such applications and/or websites from the General Directorate of Communications Programs and Projects, and the latter notifies the internet Service provider, which is required to block them within the timeframe specified.

The General Directorate of Communications Programs and Projects also must notify the General Directorate of Oversight and Sanctions in Communications to inspect compliance with the blocking measure within a maximum of thirty business days after receiving the blocking request.

User Rights

PERUVIAN CONSTITUTION

Article 2.4 recognizes the right of all individuals to freedom of information, opinion, expression, and dissemination of thought through oral or written words or images, by any means of social communication, without prior authorization, censorship, or any impediment, subject to legal responsibilities. In September 2023, article 2.4 was modified to further establish that the State promotes the use of information and communication technologies throughout the country.

Crimes committed through books, the press, and other means of social communication are classified in the Penal Code and are tried in the common jurisdiction. It is a crime to suspend or close any means of expression or prevent it from circulating freely. The right to report and express opinions includes the right to establish media outlets.

Article 14-A was also added during the September 2023 amendment, which establishes that the State guarantees, through public or private investment, free Internet access throughout the national territory, with special emphasis on rural areas, farmers, and native communities.

Due Process

Legislative Decree N° 957 – Peruvian Criminal Procedure Code

Article 230.4 stipulates that companies cannot notify individuals about the record or intercepted communications without the authorization of the prosecutor in charge. The confidentiality obligation ceases when the company is summoned as a witness in a criminal proceeding.

For these cases, the principles of Peruvian Criminal Procedural Law regarding precautionary (procedural or administrative) measures must be applied. This means, for example, that the duration of the measure must be strictly proportional to the purpose of what is sought to be achieved with the precautionary measure. There is no specific regulation on the matter.

Remedies

PERUVIAN CONSTITUTION

Article 200.2 recognizes the constitutional process of Amparo. This constitutional process is initiated when there is a violation of any constitutional right (including freedom of expression). If freedom of expression is violated or threatened to be violated, this process can be initiated to reverse the alleged violation when all appeals are exhausted. Numerous cases law have affirmed this process.

This is not to be confused with habeas corpus under Article 200.1 (see remedies relating to Surveillance and Access/Privacy Rights). Habeas corpus protects “individual freedom” that is more related to personal freedom and freedom of transit, while Amparo is used more on freedom of expression.

MINISTERIAL RESOLUTION N° 010-93-JUS – Civil Procedural Code

Article 118 establishes that the representative of the Public Prosecutor’s Office is civilly liable when, in the exercise of their functions, they act with negligence, fraud, or deceit. The procedure is subject to the same process as civil liability before the judges. Following this logic, it is possible to file a lawsuit against the Public Prosecutor’s Office for damages caused by an illegal interception violating the freedom of expression.

The general rules of appeal in the Peruvian Civil Procedure Code apply. If a judicial action is contrary to the Constitution, it can be challenged by seeking its reversal on appeal.

Statutory Provision

LAW No. 31664 – Law Amending Law 30254, Law for the Promotion of Safe and Responsible Use of Information and Communication Technologies by Children and Adolescents

Article 10 of Law No. 31664 establishes that the owners, operators, administrators, managers, or responsible parties of establishments, whether public or private, are required to ensure that these services have minimum records and filters so that access to web pages, chat channels, or any other form of network communication containing pornographic content or information is not possible. Violation of this incurs administrative penalties.

This provision applies to people who provide:

a. Public internet cabin rental services.
b. Free or rented internet services for customers in restaurants, hotels, airports, shopping centers, or similar establishments.
c. Free or rented internet services in squares, parks, government facilities of any kind, and other similar establishments.

Transparency

PERUVIAN CONSTITUTION

Article 51 establishes that publication is essential for the validity of every norm of the State.

Article 109 establishes that the law is in effect from the day of its publication in the official gazette, unless the law itself stipulates otherwise by postponing its validity in whole or in part.

DIRECTIVE COUNCIL RESOLUTION No. 165-2016-CD / OSIPTEL – Net Neutrality Regulation

Article 6 of the Net Neutrality Regulation establishes the obligation of telecommunications companies to publish network management measures. These measures include, for example, blocking or limiting traffic on the Internet.

This resolution also establishes the obligation of companies to publish their network management measures.

Information related to traffic management must be published on ISPs’ websites under a link labeled “network neutrality.” This information must be complete, accurate, and up-to-date. It should be presented in clear and user-friendly terms and must include:

1. Type of measure;
2. Service associated with the measure;
3. Frequency of application;
4. Additional informative parameter.