Judicial Power of the City of Buenos Aires: “Observatory of Argentine Informatic Law and others v. GCBA / protective action (Amparo) – other”.
Joint report of the Public Law and Data Privacy & Data Protection departments | Judicial Power of the City of Buenos Aires: “Observatory of Argentine Informatic Law and others v. GCBA / protective action (Amparo) – other”
Dear Sir or Madam,
On September 7th, 2022, the First Instance Court in Administrative and Tributary Disputes No. 4, Secretariat No. 7, of the City of Buenos Aires (“CABA”), rendered the following decision: (i) to declare the unconstitutionality of Article 1 of Resolution 398/19, by which the Fugitive Facial Recognition System (“SRFP” for its Spanish acronym) was implemented without complying with the legal requirements for the protection of the personal rights of the residents of CABA; (ii) to declare the nullity of all actions taken by the Ministry of Justice and Security of CABA within the framework of the SRFP, in violation of Article 3 of the Annex to Resolution 398/19, that is to say, without a verifiable court order; and (iii) to make the implementation of the SRFP subject to the constitution and proper functioning of the control bodies.
The SRFP aimed the identification and recognition of persons wanted by the justice system based on the real-time analysis of video images allowing access to the biometric data of almost 10 million people and was used by the Government of CABA. Thus, the issue to be resolved focused on deciding whether Resolution No. 398/19 and Law No. 6,339, which amends Law No. 5,688 (Integral Public Security System of the CABA), are in accordance with the constitutional precepts of the Nation, the CABA and international treaties. The grounds for the decision were as follows:
1. Regarding regulatory aspects:
a. The fact that the register of data related to the video surveillance system has not been created does not comply with the principle of transparency and statistical accounting information.
b. The Legislative Branch is not in a position to verify the operation of the SRFP until the Special Commission for the Follow-up of Video Surveillance Systems is created.
c. The Ombudsman’s Office cannot exercise its functions effectively because it does not have at its disposal the information on the system’s management results that the Ministry of Justice and Security of the CABA must collect, analyze and submit.
2. Regarding the processing of personal data, the decision:
a. Highlighted that the Data Protection Impact Assessment (“DPIA”), which had not been carried out by the Government of the CABA, appears as the most appropriate and fundamental tool to address the effects that the implementation of the SRFP could have on the human rights of those who transit the CABA.
b. Consequently, it determined that the system should be implemented when (i) the corresponding control mechanisms are in place, (ii) the registry of data related to the video surveillance system is established, (iii) a prior study is conducted regarding the impact of the SRFP on personal data, and (iv) the public is invited to debate it.
The decision did not become final because it was appealed, both by the plaintiffs and by the GCBA. Currently, the case is pending before Chamber I of the Court of Appeals.
Click here to read the full decision (in Spanish only).
Do not hesitate to contact us should you require further information on this matter.
Juan A. Stupenengo