Risks of an uncontrolled state surveillance in Colombia

Colombian media has recently uncovered a new State espionage case that could jeopardize the peace talks with the oldest guerrilla in Latin America and adds to historical scandals. This case reveals the absence of warranties and weaknesses of an intelligence system that has insufficient controls, but it can open the door for civil society action.

In 2009 the Semana magazine uncovered perhaps the biggest spy scandal in Colombia, known as the “DAS wiretapping.” At that time, the communications of journalists, politicians, judges and NGOs were illegally tapped (“chuzadas”) by the State intelligence authority on facts that remain obscure and that ended up with the disappearance of the DAS (many of its officials passed to the new Security Agency). In 2013, the media drew attention to “PUMA”, the communications monitoring platform for criminal investigations and a key for the implementation of the Intelligence Act. At that time, it became clear how little we knew about the new Colombian institutional framework for intelligence, State mass surveillance and selective surveillance. Two weeks ago Semana made a new revelation ​​by exposing a  military intelligence facade operation called the “Andromeda” Operation, where surveillance activities were developed.

The army and the Government admit that from a commercial space, where operated a popular restaurant and a “hackerspace” called Buggly, electromagnetic spectrum monitoring activities were undertaken. They state that the operation had the necessary authorization. However, they have not given the necessary explanations for other disclosures made by Semana on the wiretapping of communications (email) to politicians and journalists related to the peace process being conducted by the Colombian Government and the FARC in Cuba. Even if the activities meet the minimum requirements for a general and abstract network monitoring (that in the Colombian law is limited to an intelligence authority’s authorization), if it is proven that there was espionage against certain individuals, more requirements need to be met for this to be considered a legitimate activity. This, to date, has not happened.

In his first comments on the “Andromeda” case, President Santos announced a thorough investigation stating that “It is not acceptable that intelligence is made against legitimate citizens, against the political opposition, and even less against State officials.” However, he reaffirmed the use of mass surveillance for cases of national security “because it is through intelligence, especially in a world that is rapidly advancing in technology, that we best protect the State and its citizens,” said the president. This was subsequently confirmed on an investigation conducted by the army.

In another statement, the President said that the intelligence facades, as the one uncovered, are completely lawful. “They are Intelligence operations contemplated within the Intelligence Act and there is nothing irregular.” However, to date, there has not been received any proof of the legality of the intelligence activity.

It is important to point out that Colombian law poses few instances of independent control. One of them lies in the Senate Intelligence Committee. On  February 12th took place the first meeting in the history of this committee with the Minister of Defense where Senators requested clarification of “Andromeda.” From what is known, a questionnaire of 60 questions was presented and the Minister answered only 5. The Prosecutor and the comptroller, despite being summoned, were not presented. Finally, several Senators said the answers were vague and dilatory.

As it has been reported worldwide, after Snowden leaks, also in Colombia the rules on State intelligence activities are very lax. The Colombian law provides for five years of data retention, no serious independent oversight mechanisms, criteria for the approval of these activities is given by the investigators themselves and not by independent officials (in fact, when a court warrant is needed it can be done afterwards), and still not have proper and appropriate harmonization with the new data protection law. After the DAS, in Colombia some guarantees for the defense of citizens’  rights have even disappeared.

The “Andromeda” case arouses other issues. The facade was in a “hackerspace,” where young people interested in “ethical hacking” were recruited to do surveillance activities without them knowing the whole background (for example, the first Army investigation report  confirms the secrecy of the operation and suggests that the responsibility of those in charge of the operation is because they were caught). “Andromeda” contributes to the “hacker’s” wrong stereotype and stigmatizes a community that is key to the legitimate State intelligence activities and to citizens’ privacy protection.

The facts about “Andromeda” confirm the need to strengthen the intelligence mechanisms in order to effectively guarantee human rights. While privacy expectation and reality that individual can have are dependant on their own conditions and contexts, this does not mean that as a society we should resign ourselves to live in a fishbowl. We all need to have a private space that we can claim as our own. This is especially true for politicians under secret peace negotiations, judges, journalists, and so on. Demanding that respect is our obligation.

On February 11th, Karisma joined the global campaign “The day we fight back” through a local campaign “No Internet wiretapping.” We encourage all users of the network, especially the Colombians, to subscribe to the 13 principles against mass surveillance, and to call on politicians to commit to defend them. In this context, we will be working to insist that surveillance must be “necessary and proportionate,” that independent supervision and public information have a fundamental role regarding intelligence systems, and that citizen involvement, of civil society, is key to prevent abuse of surveillance powers that are in the hands of the States.