- The norms contained in the proposed New Constitution describe in greater detail the rights protected in Article 19(4) and (5) of the current Constitution.
- Some variations are incorporated in the guarantee of inviolability of communications.
- A reference to metadata is also incorporated, which is a world-first in this area.
Proposal contained in the New Constitution Draft
The proposed draft does not innovate in substantive matters, except for the rule that incorporates the guarantee of inviolability of communications into the metadata of documentation and private communication.
Below, we transcribe the proposed article and briefly comment on this provision.
“Article 15. The protection, promotion and respect for the right to privacy of individuals, their families and communities.
No person or authority may affect, restrict or impede the exercise of the right to privacy except in such cases and in such manner determined by law.
Private premises are inviolable. The entry, search or break-in of these may only be carried out with a prior judicial warrant issued in specific cases and in the manner determined by law, except in cases of flagrante delicto.
All forms of private documentation and communication are inviolable, including their metadata. Interception, seizure, opening, opening, search or review may only be carried out with a prior judicial order issued in the manner and for the specific cases determined by law”.
This article contains the following elements:
i) Legal reservation to the restriction of rights
The right to privacy is established in a broad manner, indicating the possibility of limiting it only through law. This does not substantially modify the current constitutional regime, which also refers to the law to determine the limits of this right and the possibility of affecting it.
ii) Private enclosures
The term “private enclosures” is used. This concept makes it possible to broadly cover enclosures which, given technological advances, had not been explicitly considered in the current constitutional text. From this wording, it includes not only physical enclosures, but also servers and cloud computing platforms against physical or remote intrusions that may be made against them.
In this case, the eventual entry, search or raid requires not only a warrant, but the law must detail in which cases and in what manner these acts can be carried out. If it does not contain these aspects, the law could be considered unconstitutional. This implies a higher level of strictness in the configuration of the hypotheses of intrusion in private physical and digital enclosures. Finally, this could generate conflict with the generic hypotheses of authorisation of this type of actions contained in national legislation.
iii) All forms of private documentation and communication
The broad terms “documentation” and “communication” are used to consider both communications that takes place through written means and verbally. In general, it includes the different types of communication that can be used, such as, verbal or non-verbal; face-to-face or non-face; synchronous or asynchronous; physical or virtual.
Within the enshrinement of the inviolability of communication, the denominations used in the current constitutional text are maintained. Therefore, the establishment of its inviolability does not substantially alter the current regime in this area in Chile.
The main innovation in this section, in addition to the warrant requirement explained above, is the reference to metadata, which is a world-first in this area. This concept, which is usually described as “data about data”1 will find a level of constitutional protection that was not explicitly envisaged until now. This will entail an extension of the object to be protected through the technical implementations to be made in the field of computer and communications security, guaranteeing at the constitutional level not only the protection of communications and messages sent between subjects, but also of the information referring to these communications (such as the size, author or name of a file, or the date of its recording or editing).
Regulation in the current Constitution
The Constitution currently in force regulates matters related to privacy, protection of personal data, honour and inviolability of the home and communications in Article 19, (4) and (5).
The following is a brief transcription and explanation of the rules governing privacy and inviolability of communications in the Constitution currently in force.
“Article 19.- The Constitution ensures to all persons: (…)
4º.- The respect and protection of the private life and the honour of the person and his family (…);“.
The fourth numeral enshrines in general terms the respect and protection of “private life“, also protecting the honour of individuals and their families.
Privacy is understood as that dimension of a person’s life that they wish to keep out of public space, including a person’s body, objects, places, and the possibility of preventing these elements from being known by a third party. Honour has been understood as the prestige, fame, and good name that a person has in the eyes of others.
The aim of stablishing these rights is to prevent these assets from being affected, either by revealing those aspects that we wish to keep private or by affecting the image that third parties have of us. In short, it is a brief regulation that enshrines these rights in a general manner, delegating the details of their protection and regulation to the law.
“Article 19.- The Constitution guarantees all persons: (…)
5º.- The inviolability of the home and of all forms of private communication. The home may only be broken into and private communications and documents intercepted, opened or searched in the cases and ways determined by law“.
The fifth sub-paragraph provides for the “inviolability of the home“. This expression is equivalent to “private premises” and therefore includes the family home, offices, hotels and any building or property that is not open to public access or to the national public good. The inviolability of private communications includes the protection of written correspondence and of telephone, radio, electronic or any other means of communication, as well as of all private documents carried or kept by individuals in their homes or workplaces. The term “private communications” is intended to cover all non-public communications.
Innovation of the proposal in this area
The standard that was incorporated in the New Constitution Draft is an innovation that, if approved, will probably require the assistance of technical guidelines or more detail from sectoral authorities in order to effectively meet this standard. This is because the metadata protection statement alone is extremely broad and unspecific. Not having a description of the scope of this protection, e.g., not distinguishing between types of metadata2 (descriptive, structural, or administrative), could prevent effective compliance of the constitutional mandate.
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Footnotes
1 A more complete definition of metadata is “Information describing the characteristics of data including, for example, structural metadata that describes the data structures (e.g., data format, syntax, and semantics) and descriptive metadata that describes data contents(e.g., information security labels)” Definition contained in the NIST Glossary of Terms. Available at: https://csrc.nist.gov/glossary/term/metadata#:~:text=Data%20about%20data.,SP%20800%2D86%20under%20Metadata
2 On this point “Understanding Metadata” by the National Information Standards Organization, p. 6. Available at: https://groups.niso.org/higherlogic/ws/public/download/17446/Understanding%20Metadata.pdf
