Edward Snowden’s revelations on the cyber surveillance of the United States of America through the “PRISM” project is one of the major events which have put the spotlight on the threats facing fundamental rights in the era of digital. These revelations have taught us that governments do not always have the best intentions when using information and communication technologies. In 2021, AccessNow’s report “THE RETURN OF DIGITAL AUTHORICISM: Internet Outages in 2021” reported more than 182 incidents of internet outages in 34 countries around the world. Furthermore, the discovery of the Pegasus spyware developed by the Israeli company NSO group which has been used by democratic and authoritarian regimes to spy on journalists, human rights defenders and political opponents reaffirms the threats posed by ICT.
All of Haiti’s partners, including the United States Embassy in Haiti and UNESCO, agree that there is no evidence that the Haitian state is using ICT to monitor and control the exercise of freedom of expression. However, without a transparent monitoring mechanism, we cannot have a final decision. The most important thing is that the State provides guarantees that it will not interfere in the exercise of expression through ICT.
Although there is no proven evidence of government oversight of expression through ICTs, this does not mean that there are not inherent risks in this area. Indeed, the decree establishing, organizing and functioning of the National Intelligence Agency (ANI) dated November 26, 2020 has raised numerous questions regarding respect for fundamental rights, in particular freedom of expression.
Paragraph 5 of article 5 of the decree gives the ANI the powers to “participate in the surveillance of individuals and groups likely to resort to violence and undermine national security and social peace; contribute to the territorial surveillance function; collect and process related data, contribute to the prevention and repression of acts of terrorism…”.
Fondasyon Je Klere in its commentary on the decree sagaciously pointed out that: “ Surveillance or data collection measures can today take forms such as surveillance carried out on telephone calls from individuals or from professional premises (offices of lawyers, judges, accountants, notaries, traders , press organs, etc.) interception of communications, restriction of secrecy of correspondence, postal mailings and telecommunications, electronic mail and consultation of the Internet, monitoring of the use of electronic messaging systems , the installation of microphones by the police in a private place as part of a judicial investigation, the sound system of places of detention, the use of telephone listening devices, searches, the video recording of an individual at police station and broadcast of this sequence on television, retention of fingerprints and DNA data, seizures, including seizure of computer files and electronic messages.»
The fears of Fondasyon and other stakeholders in society are not trivial. For fear of reprisals, several professors and experts refused to comment on the creation of the Agency after request from the online newspaper Ayibopost. According to what the newspaper reported: The majority of experts contacted by AyiboPost refuse to speak publicly on the decision of President Jovenel Moïse to create the National Intelligence Agency through a decree taken on November 26, 2020. They claim to be afraid of possible reprisals, the part of the agents of this new structure. Thus, two lawyers, two historians, a rector and three politicians contacted all declined our interview requests. “The President of the Bar Monferrier Dorval is assassinated for daring to say what he thinks,” one of the historians argues on the telephone.s. »
This decree not only constitutes a violation of human rights, but it also serves as a dissuasive instrument against potential opponents of power. One of its effects is to push individuals to self-censor. Unfortunately, there is no data on the mobilization of the Agency or its dissolution by the State. Furthermore, this text highlights the desire of politicians to use surveillance, although some people may argue that the Haitian government does not have the technical resources to implement cyber surveillance. However, it should be emphasized that in the absence of public data on government actions in this area, as well as a transparent mechanism for civil society to monitor government actions at the technological level, we cannot have opinions definitive.
In addition, it is necessary to point out the prerogatives granted by the Law of February 21, 2001 Relating to the Laundering of Assets Deriving from Illicit Drug Trafficking and Other Serious Offenses (Moniteur # 30 of April 5, 2001) to the investigating judges and the dean of the Courts of First Instance (TPI):
Article 3.3.1 In order to obtain proof of the original offense and proof of the offenses provided for in this law,
The Dean of the Court of First Instance with territorial jurisdiction or the investigating judge seized of the case may order, for a maximum period of three months, renewable once only:
a.- Placement under surveillance of bank accounts and accounts similar to bank accounts;
b.- Access to computer systems, networks and servers;
c.- the placing under surveillance or tapping of telephone lines, fax machines or
electronic means of transmission or communication;
d.- audio and video recording of actions and conversations;
e.- the communication of authentic and private acts, banking, financial and commercial documents.
They can also order the seizure of the above-mentioned documents.
However, these operations are only possible when there are serious indications that these accounts, telephone lines, computer systems and networks or documents are used or are likely to be used by persons suspected of participating in the offenses referred to in paragraph 1st of this article.
The decision of the Dean or the investigating judge is motivated with regard to these criteria.
Additionally, following the violence which led to the release of approximately 4,000 prisoners at the civil prison of Port-au-Prince and the hacking of radio communications by bandits, an increase in the use of police and bodies defending digital technologies.
In the absence of an accountability mechanism for the use of these powers by judicial officers, it is impossible to assess misuse and protect victims as well as seek reparations to whom it is due.
Monitoring acts that could harm national security and the economic development of the country is essential. This surveillance makes it possible to control the actions of enemies of the nation aimed at undermining its foundations or tax and customs fraud, to name just a few examples. Notwithstanding, it is essential to subject government surveillance to the accountability of an independent body and other institutions such as a personal data protection body. Furthermore, it must be transparent, accountable and subject to control exercised by a mechanism including civil society.
The action of former President Jovenel Moise should not leave academic society indifferent, but rather trigger a careful review of the government’s actions in the field of intelligence and mass surveillance. An in-depth study in this area would be essential to assess the impact of such policies on the individual rights and privacy of citizens. It is necessary to examine the motivations, methods and consequences of these practices to understand their legitimacy and their conformity with democratic principles. Such a study would provide a critical perspective on their impact on fundamental rights.
In short, although there is no public data on the cyber surveillance of citizens by the Haitian state, this absence of data invites us to be cautious in drawing conclusions. Especially since on social networks, public bodies and officials tend to block critical individuals and prohibit comments. It is important to develop a culture of accountability and transparency with clear guarantees on the limits of the State in its use of digital tools in surveillance.
Jameson Pierre-Louis
LinkedIn: https://www.linkedin.com/in/pierrelouisjameson
