This post is part of the series “Unblinking Eyes: The State of Communications Surveillance in Latin America,” a collaborative project conducted with digital rights partners in Latin America, which documents and analyzes surveillance laws and practices in twelve countries: Argentina, Brazil, Chile, Colombia, El Salvador, Guatemala, Honduras, Peru, Mexico, Nicaragua, Paraguay, and Uruguay. In addition to the individual country reports, EFF produced a comparative legal analysis of the surveillance laws in those twelve countries, as well as a regional legal analysis of the 13 Necessary and Proportionate Principles written with Derechos Digitales, and an interactive map that summarizes our findings.

In 2004, when Argentinean lawyer Alberto Nisman was appointed by then President Nestor Kirchner to investigate the deadliest bombing in Argentina's history, few suspected that Nisman himself would become a fatality. The story of Alberto Nisman reflects the shadier parts of modern Argentina, including a still-mysterious use of digital surveillance against the rule of law.

Nisman was in charge of investigating the 1994 terrorist attack in Buenos Aires that targeted a Jewish Center, the Asociación Mutual Israelita Argentina (AMIA), killing 85 people. Two years after being appointed lead prosecutor, Nisman publicly accused Iran of directing the attack. Nisman eventually indicted seven Iranian government officials. With five international arrest warrants secured, the Argentinean government publicly urged Iran to extradite the suspects. The government of Iran refused.

Over the years, the case left the two countries at an impasse. Nisman forged ahead. His investigation was largely supported by Cristina Fernández de Kirchner who became Argentina's president after her husband stepped down in 2007. That is until rumors of closed-door negotiations between her and the Iranian government led Nisman to accuse President Fernández of making a secret deal between Argentina and Iran that would cover up any involvement in the bombing.

On January 18, 2015, the evening before Nisman was scheduled testify in Congress against the president and her foreign minister, he was found dead in his home.

An investigation subsequently conducted by security expert Morgan Marquis-Boire for The Intercept, indicated that Nisman had downloaded malware on his cellphone shortly before his death. Marquis-Boire explains that the software was hidden in a PDF marked “confidential,” and was intended to infect Nisman's Windows computer. Because Nisman opened the file on his Android phone, the spyware was not properly deployed. No one knows whether Nisman ultimately opened the file on his primary computer and infected it with spyware, but Marquis-Boire is confident that this malware attack was not an isolated event. Whoever was behind Nisam's final spyware appeared to use similar surveillance tools on other subjects, including the Argentine journalist, Jorge Lanata. Attribution of spyware is difficult, but Marquis-Boire believes there are strong indications that a government actor was behind these attacks.

Argentina has a long history of government secrecy and surveillance. One of the country's biggest surveillance scandals, unveiled during Cristina Fernández de Kirchner’s presidency, was the uncovering of Project X—a national police database that contained intelligence information on union leaders and members of the opposition, collected without a warrant. Project X clearly violated the country's national intelligence law and the law on personal data protection. Illegal wiretapping is not unknown in the country—the current president Mauricio Macri was under investigation for five years for his alleged participation in one such case. Although acquitted in December 2015, Macri has blurred the separation of powers by nominating a close friend as chief of the federal intelligence agency (AFI), and a party official with close ties to the intelligence community as deputy director. Argentina civil society has harshly criticized the nominees for their lack of suitability, however the Senate confirmed their appointments in August, 2016—a signal which may suggest the intelligence agencies are becoming less autonomous and reverting back to old practices.

These known reports of unchecked surveillance prompted EFF, along with our partners in Argentina at the Center for Studies on Freedom of Expression and Access to Information (CELE), Verónica Ferrari and Daniela Schnidrig, to write “State Communications Surveillance and the Protection of Fundamental Rights in Argentina,” a report that analyzes surveillance law in Argentina and provides recommendations. This report is part of the larger project “Unblinking Eyes: The State of Communications Surveillance in Latin America.” Here are some of its main findings:

Surveillance in Argentina Today

Argentina has ratified several human rights treaties that protect the right to privacy, such as the American Convention on Human Rights (ACHR). All the treaties that Argentina has ratified are binding and applicable in domestic law.

However, there is a lack of clarity in the privacy safeguards that Argentina's laws provide. The country's legal framework uses broad definitions in its legal provisions, and its intelligence framework allows for significant exceptions to constitutional privacy protections in “states of emergency,” (a phrase that is not adequately defined).