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II. Surveillance policy

Communications surveillance

According to Article 16 of the Civil Code, "the mail, communications of any sort or voice recordings, when they are confidential or refer to personal and family private life, cannot be wiretapped or disclosed without their author and addressee's assent. The publication of the personal or family memories requires in any case the author's authorization. When the author or recipient has died . . . his heirs get the right to consent for him. If there is no agreement between heirs, the judge decides. The prohibition of the posthumous publication made by the author or the recipient cannot extend beyond 50 years from his death."

In April 2002, Peru passed a new law to govern the interception of communications and private documents.1 Under this law, a judicial warrant is needed to seize documents or intercept communications. The law requires telecommunications operators to provide all necessary technical assistance and facilities to carry out interceptions. The powers may be used in the investigation of crimes, including kidnapping, child traffic, drug traffic, customs violations, terrorism, crimes against humanity, and treason.

There have been numerous reports of abuse of surveillance of the National Intelligence Service (Servicio de Inteligencia Nacional, or SIN). The SIN conducted widespread surveillance and illegal phone tapping of government ministers and judges assigned to constitutional cases, beginning in the early 90s. Army agents used sophisticated Israeli phone-tapping equipment to monitor telephone conversations, and copies of the conversations were delivered to Vladimiro Montesinos, the former head of Peru's intelligence service.2 The SIN maintained close ties with the U.S. Central Intelligence Agency, including a covert assistance program to combat drug trafficking.3 The SIN has allegedly conducted a nationwide surveillance campaign with the sole purpose of intimidating political opposition figures, including the former UN General Secretary Javier Pérez de Cuéllar while he ran for President against Alberto Fujimori.4 In 2003, a parliamentary commission investigated the telephone wiretapping carried out during the government of Alberto Fujimori. It discovered that Vladimiro Montesinos had used the Office of Electronic Information (DIE) of the SIN to carry out telephone monitoring. For that purpose, the DIE activated 29 interception points in Lima and Callao, of which only 20 have been deactivated.5

According to the parliamentary commission, some of this surveillance equipment is still in operation. This presumption is based upon reports of telephone wiretapping made after the deactivation of the SIN operation. In September 2003, journalists denounced the pursuit of this operation by the current intelligence service agency. The head of intelligence was dismissed after he admitted spying on journalists. He alleged that the investigation only studied how "confidential information"6 (información reservada) was filtered from the government to the press.

On July 29, 2004, the new Code of Criminal Procedures, Legislative Decree 957, was published in the Official Gazette. The controversial Article 205 allows police, without an order from the prosecutor's office or a judge, to require identification and investigate the identity of any person, where considered necessary to prevent a crime, or to obtain useful information relating to a punishable offense. Under Article 206, for felony offenses, when it is necessary to discover and locate the participants to a socially disturbing crime and safeguard evidence of such a crime, the police, by notifying the prosecutor, may place guards on public thoroughfares, places, and establishments. These guards may identify the persons who are traveling to, or are present in, those places, search vehicles, and stop and search individuals' personal effects, in order to check whether these persons are carrying illegal or dangerous substances or instruments. In this case, the police will establish a Register of Public Police Checks.7

On February 12, 2003, President Alejandro Toledo promulgated Legislative Decree 922. Article 12 of the Decree states that "oral hearings for the crime of terrorism will be public. The public and media outlets will have access to the courtroom. However, the use of video cameras, tape recorders, cameras and similar technology is prohibited."8

Video surveillance is regulated in Article 207. It gives the prosecutor's office the authority to photograph, do detective work, and/or use special technical measures to observe the residence of a suspect at the prosecutor's or police's request in the case of investigations for serious or violent crimes, or for involvement in criminal organizations.9 In the Miraflores district of Lima, 25 video surveillance cameras have been installed in the main streets and parks. The cameras have visualization fields of 360 degrees, massive zooming power, and are connected to two surveillance control rooms, including the National Police emergencies station.10

In July 2000, a Computer Crimes Law was adopted and codified in Article 207(A)(B)(C) of the Penal Code.11 The Law prohibits unlawful access, use, interference, or damage to a system, database, or network of computers. Sanctions include up to five years' imprisonment.

In November 2003, the Parliament passed a law that compels administrators of Internet cafés to install a browsing filter or mechanism that makes it impossible to display pornographic content.12 In addition, local authorities of several districts of Lima passed similar regulations that also include penalties such as fines and the permanent closure of the business.