Constitutionality of the PANAUT
BRIEF ANALYSIS OF THE AMENDMENT TO THE FEDERAL TELECOMMUNICATIONS AND RADIO BROADCASTING LAW AND THE CREATION OF THE PANAUT
On April 16, 2021 an amendment to the Federal Telecommunications and Radio Broadcasting Law was published in the Federal Official Gazette . It contains the creation of the National Registry of Users of Mobile Telephones (“PANAUT’”), which will have a severe impact on every user with a mobile phone line. Its impact results from the sensitive information that is being required to be delivered to such registry, and the penalties in case of failing to do it.
1. What is the PANAUT?
PANAUT is a registry to be operated and surveilled by the Federal Telecommunications Institute (“IFT”), after the collection of personal data from the users, including biometric data, executed by the concessionaries of mobile phone services.
The IFT shall issue general administrative guidelines to specifically regulate the operation of the PANAUT, provided that it shall be issued no later than October 2021.
The amendment states that the PANAUT will provide the judicial authorities with sufficient elements to identify the individuals that commit crimes through the use of mobile phones, and in this manner, it will collaborate with the authorities in charge of justice. In other words, the reason for the regulation is the alleged public security.
2. What personal data will be collected? What is biometric data?
Pursuant to the amendment, the PANAUT will record the following from each user of a mobile phone line: (I) telephone number, (II) full name, (III) official photo ID or CURP, (IV) domicile, (V) data of the concessionaire, (VI) type of contract and (VII) biometric data.
The biometric data is deemed to be sensible personal data, as their misuse may generate serious risks for the person that delivers such data.
The biometric data includes the physical features, physiology features, behavioral or personality trends, attributable to a single individual and which may be measured.
Some examples of biometric data include the fingerprint, the face through facial recognition, the retina, the iris, the geometry of the hand or the fingers, the structure of the veins of the hand, the shape of the ears, the skin or the texture of the skin surface, the DNA, the chemical composition of body odor and the vascular patterns and hearth rate, among others.
In this manner, this amendment forces the users to surrender biometric data to the concessionaire of the telecommunication services so that it subsequently delivers it to the IFT and form the PANAUT.
3. What are the penalties of failing to provide such information?
In case of the users that already have a phone line prior to the amendment, they will have a two-year term to comply with the obligations of such registration with the PANAUT. The amendment establishes that this registration is an obligation and in case of failure to comply, the IFT will request to the concessionaire to immediately cancel the unregistered mobile phone lines.
In the case of new mobile phone lines, upon the beginning of the operation of the PANAUT, such registration and information shall be obligatory in order to obtain a mobile phone line.
4. Is this request valid? Does this have a constitutional basis?
In our opinion, the amendment to the law through the creation of the PANAUT violates fundamental rights protected in the Political Constitution of the United Mexican States (“CPEUM”). The obligations established by this law are an arbitrary interference into the private life of the individual without proper constitutional basis.
The amendment to these laws is unconstitutional as it violates the following fundamental and human rights:
Freedom of Speech, in its access to information angle. Mobile phones constitute an essential tool to search for, receive and share information and ideas of all nature. The condition of delivering biometric data in order to be able to use a line constitutes a direct breach of this right, as it constitutes an abuse of official controls for its exercise without an objective reasonability.
Right to the protection of personal data and private life. A person has a right over its personal data. The person should be free to decide which aspects should be shared and which should not. The amendment violates this right as there is no clear direct or consequential relation between the existence of such registry and a better investigation and prosecution of crimes, especially considering the legal provisions currently in place that allow the investigative authorities to collect personal data from mobile communication equipment.
Right to make free use of the information technologies and telecommunications. Telecommunication services have a social function and are recognized as tools to exercise other fundamental rights. The cellphone services with internet access are a platform to maximize many fundamental rights, and therefore they may not be prevented, restricted and/or conditioned arbitrarily nor under doubtful categories as is the case with the delivery of biometric data to the concessionaire in order to generate a registry intended to be used a measure to combat crime in the country.
Right of every person to be presumed innocent. Considering that the collection of biometric data of the holders of lines may result in more information for the investigation and prosecution of crimes implies an ex-ante qualification of every person holding a cellphone contract as a potential criminal.
5. How can it be appealed and period to do so?
The legal means to challenge this amendment is the indirect amparo trial. Likewise, this law is deemed to have an automatic application as its mere effectiveness imposes an obligation for the user to surrender their biometric data or otherwise be subject to the cancellation of the service within two years.
In consequence, the amparo trial against this amendment may only be initiated up until May 31, 2021.
Please note that filing against it at this time does not prevent the private parties from challenging any subsequent act of the authorities as a first enforcement act against them.
6. What are the requirements to file an amparo trial?
If a user of a line desires to file an indirect amparo, they shall provide the following documents to demonstrate their lawful interest:
Telephone Service Contract executed between the private party and the concessionaire.
Statement of account evidencing the payment of the mobile phone service.
For legal entities, in addition to those documents, they shall provide a copy of the power of attorney to act on behalf of the company.
7. How does this affect legal entities?
The representatives of legal entities and their users are also compelled to deliver their biometric data.
Therefore, any legal entity with many phone lines to its name, shall deliver the biometric data of its representative.
We will be glad to address any doubt or comment relating to this note.
Paola F. López Jiménez
Rodrigo F. Martínez Vergara