Chile’s draft constitution looks to the future: digital rights as fundamental rights

♦ ♦ ♦ This article is part of a series where experts analyse issues related to the process and substance of Chile's Constitutional Convention. Read more. ♦ ♦ ♦

Chile’s draft constitution includes new digital rights and refurbishes several classic human rights for the digital era. While Chile is already a frontrunner in ensuring protection of data and net neutrality, the set of proposed provisions would provide a constitutional system for the protection of privacy, informational self-determination, and computer security, where traditional constitutional provisions converge with those innovations necessary for a society in constant digitalization. If the draft constitution is approved, Chile’s innovative framework will be closer than ever to safeguarding an emerging type of citizenship: digital citizenship – writes Dr. Danielle Zaror Miralles

The Chilean constitutional process has been unique in many ways, including the approval of a catalog of rights that are atypical not only in Chilean or Latin American constitutional practice, but also around the world. In particular, the Chilean process has marked itself as a forerunner in including digital rights for Chileans in the draft constitution. These digital rights provisions are located in the fundamental rights chapter and represent the undeniable need to recognize that, today, human beings and society have a true and tangible presence in digital spaces where they exercise citizenship, which therefore needs recognition and protection.

This piece analyses Chile’s current regulatory framework, milestones on the path to the inclusion of new digital rights and reimagining classic human rights in the draft constitutional text, and concludes that, taken together, Chile’s innovative framework is closer than ever to safeguarding an emerging type of citizenship: digital citizenship.

Background

Chile has long been a public policy laboratory in Latin America. While the biggest experiment may have been the implementation of neoliberal economic policies by Chile’s “Chicago Boys” during the 1970 and 1980s military dictatorship, the truth is that since Chile returned to democracy it has been fertile ground for other political and legal innovations that have been mostly successful.

From 1990 onwards, investment in infrastructure has allowed telephone and internet services to reach almost 90% of households in the country, among the highest penetration of internet in Latin America. However, the high coverage does not necessarily translate into stable connectivity, since many connections are from cell phones (fragile and brief), and many users are not digitally literate citizens. The pandemic has also impacted these issues. Although connection to the internet increased during this period, it was revealed that there is a correlation between lower income levels and greater degrees of difficulty in accessing and using digital services.

The regulatory landscape has evolved significantly over the previous decades. In 1993, Chile’s cybercrime law – the first in Latin America – came into force and in 1999 a personal data protection law was enacted. In both cases, it was pioneering legislation in the region. In 2010, Chile became the first country to guarantee and legislate net neutrality, providing a regulatory framework that promoted the rights of users and the obligation of internet providers to manage traffic without infringing free competition.

Later came laws that protected free choice in cable television, internet and telephone services (2015) and other rules that established the minimum guaranteed speed of internet service (2017), as well as a series of subordinate rules aimed at generating an ecosystem of regulations that would allow the development of internet technology services.

A pivotal moment in the development of Chile’s protection of digital citizenship came in the 2018 constitutional recognition of the fundamental right to personal data protection…

A pivotal moment in the development of Chile’s protection of digital citizenship came in the 2018 constitutional recognition of the fundamental right to personal data protection, enshrined as part of the state guarantee to respect and protect an individual’s private life and honor. Its approval is not something trivial if it is considered that a constitutional norm is something that "constitutes us", an intrinsic attribute that the political community has agreed should be protected because it is an essential part of who we are and its treatment affects our lives.

Towards a legal framework to protect digital citizenship

After Chile’s October 2020 referendum confirmed that voters wanted a new constitution drafted by an elected constituent assembly, discussions on important issues intensified, and civil society began to advocate to strengthen the right to privacy, maintain the recently approved right to personal data protection, and for other new rights.

Among the new issues under discussion, internet provision as a basic service seemed to be the topic with most widespread relevance: the Covid-19 pandemic illuminated how connectivity was a crucial precondition for ensuring the exercise of other rights in the digital space (telemedicine, distance learning, access to digital markets, etc.). The public sector, industry, academia and civil society reacted with high degrees of consensus. Other issues that emerged were those related to security in the digital environment, digital literacy, and net neutrality.

When Chile’s Constitutional Convention got underway in late 2021, its Rules of Procedure envisaged significant and impactful public participation. In addition to traditional public hearings, which took place in person and remotely, the Convention accepted citizens’ initiatives, a mechanism allowing the public to propose provisions for the draft constitutional text, which had to be debated and discussed like a provision proposed by a Convention delegate if it succeeded in gaining 15,000 signatures from at least four regions in Chile.

In this instance, the Centre for Information Technology Law Studies at the University of Chile (with which the author is affiliated) drafted a citizens’ initiative based on findings from their #ConstituciónDigital project, which sought the constitutional recognition of three related areas:

Privacy. Although the inclusion of a right to privacy was undisputed (since the baseline for rights in the draft constitution was the Universal Declaration of Human Rights), it was proposed that the approach should be not only individual but also collective. Tech corporations’ collection – often improper – of large volumes of personal data means it is important to analyze the impact not only on the individual, but also its political repercussions (surveillance), social (profiling), community (discrimination) and, ultimately, the attendant effects on democracy. The right to privacy would be expanded from a classic interpretation to one encompassing spaces of digital life, including servers, cloud servers, and metadata.

The right to informational self-determination in the new constitution may counteract invasive and potentially discriminatory use of personal data by the State and private corporations.

Personal data protection. This is a fundamental right which was, as mentioned above, recently enshrined in Chile’s Constitution. But its maintenance in the new constitutional text should be a starting point to strengthen its exercise and protection. Implementation and enforceability are key concerns, so effective protection of the right should be guaranteed through the creation of a personal data protection authority. The right to informational self-determination in the new constitution was essential considering, on the one hand, the necessary and intensive use of personal data in the daily activities of individuals and institutions, and, on the other hand, the large-scale multiple predictive, massive, invasive and potentially discriminatory use of personal data by the State and private corporations.

Computer/Cyber Security. In view of the risks and threats posed to the digital security of individuals by manipulative use of data, interception, interference, and improper access, it was proposed to create a new constitutional right aimed at promoting, protecting and respecting the computer security of individuals, their families and communities, including by encryption.

The initiative had to gather the support of 15,000 people via the Convention’s digital platform. It gathered more than 18,000 signatures in one week, making it one of 78 initiatives that reached the eligibility threshold to enter the constitutional discussion.

From the idea to the constitutional draft

In the months of debate and discussion during the Constitutional Convention, especially in the Knowledge Systems Committee and Fundamental Rights Committee, there were many proposals related to digital rights. Not every provision on digital rights promoted in the Constitutional Convention was approved in their respective committees or later in the plenary session of the Convention. Nevertheless, some of the discarded provisions were subsumed in general wording or in a new subsection.

After several votes and after the harmonization period, finally the catalog of digital rights was placed between articles 70, 85 to 89, 97 and 98. The following provisions are included in the final draft.

Art. 70 Right to privacy. The text states:

1. Everyone has the right to personal, family and community privacy. No person or authority may affect, restrict or impede its exercise, except in the cases and forms determined by law.
2. Private premises are inviolable. Entry, search or search may only be carried out with a prior court order, except in cases of flagrante delicto as established by law.
3. All private documentation and communications are inviolable, including their metadata. Interception, seizure, opening, registration or search may only be carried out with a prior court order.

These provisions are innovative in considering privacy not only as an individual right, but also as a collective one. It conceptualizes privacy as the protection of person (body), places and things, and this article clearly structures its protection in these three dimensions, articulating in each of its paragraphs these hypotheses of protection.

Art. 85 Universal Access to Digital Connectivity. The approved provision states:

1. Every person has the right to universal access to digital connectivity and to information and communication technologies.
2. The State guarantees free, equitable and decentralized access, with conditions of adequate and effective quality and speed to basic communication services […].

The same provision obliges the State to “overcome gaps in access, use and participation in the digital space, its devices and infrastructures” and yet another guarantees the right to “digital education” and “to the development of technological knowledge” (Art. 89). Under Article 88, the State must further ensure “all persons have the possibility of exercising their rights in digital spaces” and “the right to participate in a digital space free of violence.”

As stated above, these rights, conceived as a new public service, will be a challenge in terms of provision for both the State and the private sector, which must build, improve, and maintain its infrastructure.

Art. 86 Informational self-determination. The approved provision states:

• Every person has the right to informational self-determination and to the protection of personal data. This right includes the right to know, decide and control the use of data concerning him/her, to access, be informed and oppose the processing thereof, and to obtain its rectification, erasure and transfer; without prejudice to other rights established by law.

This provision recognizes an existing right but amplifies the effects of its recognition and the principles that determine it.

Art. 87 Computer/Cyber Security. The proposed provision states that:

• Every person has the right to the protection and promotion of computer security. The State and individuals must adopt the appropriate and necessary measures to guarantee the integrity, confidentiality, availability and resilience of the information contained in the computer systems they manage, except in the cases expressly indicated by law.

This provision is unprecedented and a tremendous innovation: the guarantee of security extends not only to physical spaces, but also to digital interactions. This last recognition is aligned with what was stated by the United Nations Human Rights Council Advisory Committee in 2021 regarding the validity of fundamental rights in physical and digital spaces, which specified that classic rights must adapt to the challenges posed by the digital space.

Conclusion

Although there are other equally interesting provisions in the draft constitution, these updated classic rights and newly created digital rights (including collective rights) show how relevant it is in contemporary society to make visible the digital dimension of people and societies, where their protection becomes interlinked with the full exercise and enjoyment of other rights. Already a frontrunner in ensuring protection of data and net neutrality, the set of proposed provisions will allow Chile to have a constitutional system for the protection of privacy, informational self-determination, and computer security, where traditional constitutional provisions converge with those innovations necessary for a society in constant digitalization such as Chile's.

Danielle Zaror Miralles has a PhD in Law from the University of Chile. She is a researcher at the Centre for Information Technology Law Studies (CEDI) at the University of Chile and also part of Observatory for Transparency and Algorithmic Inclusion (OptIA).

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Suggested citation: Danielle Zaror Miralles, ‘Chile’s draft constitution looks to the future: digital rights as fundamental rights’, ConstitutionNet, International IDEA, 2 July 2022, https://constitutionnet.org/news/chiles-draft-constitution-looks-future-digital-rights-fundamental-rights 

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