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Letter to President Fernández re: protecting children’s privacy in judicial proceedings

Washington, DC, October 9, 2020

President Alberto Fernández
Buenos Aires — ARGENTINA

Re: Protecting Children’s Privacy in Judicial Proceedings

Dear President Fernández,

I am writing on behalf of Human Rights Watch to share our concern regarding the publication of the personal data of children with open arrest warrants in the national database Consulta Nacional de Rebeldías y Capturas (CONARC; National Reference of Fugitives and Arrests), administered and made publicly available online by Argentina’s Justice and Human Rights Ministry.[1]

On May 17, 2019, the United Nations Special Rapporteur on the right to privacy warned Argentina that its use of CONARC was violating children’s rights.[2] The rapporteur found that the database–which the ministry makes publicly available online and contains suspects’ names, ages, national ID numbers, the alleged offense, and the location and the authority issuing the warrant, among other details–contained 61 children and their personally identifiable information at the time. By publicizing the arrest records of children, the government was putting these children at risk of harm.

Children’s privacy during all stages of criminal proceedings is protected under the Convention of the Rights of the Child, ratified by Argentina, and recognized by the Inter-American Court of Human Rights and the Argentine Supreme Court.[3] International standards require that no information be published that may lead to the identification of the child.[4] Children are vulnerable to stigmatization, and the permanent labeling as ‘delinquent’ or ‘criminal’ impacts their ability to access education, healthcare, and other rights in later years. Countries around the world have established special protections to safeguard these rights for children; in Argentina, police and courts are required to comply with strict directives that prohibit the publishing of any information that may identify a child accused of a crime.[5]

Our research found that in the year since the Special Rapporteur’s warning, at least 25 more children have been added to the online database. Human Rights Watch reviewed 28 versions of the database that were published between May 2017 and May 2020, as archived by the Internet Wayback Machine, and found that over this three-year period, at least 166 children have been listed in CONARC. Even children suspected of minor crimes are included. The most common crime that these children are accused of is theft–63 children, or 37.5 percent.

The database contains obvious errors and discrepancies. Some children appear multiple times. There are blatant typographical errors, conflicting details, and multiple national ID numbers assigned to single individuals, raising the risk of mistaken matches. In one example, a 3-year-old is listed as being wanted for aggravated robbery. These persistent errors in CONARC, which is updated every morning at 7 a.m., indicate that it lacks basic safeguards to minimize data entry errors, which can have serious consequences for the reputation and safety of the children.

These harms have been further amplified by the government of the City of Buenos Aires. The city government has been loading images and identities of these children and others in CONARC into a facial recognition system, called the Sistema de Reconocimiento Facial de Prófugos, despite the significant errors in CONARC. The facial recognition system scrutinizes live video feeds of people catching a subway train, walking through or in the vicinity of a subway station, and identifies possible matches with the identities in CONARC.

This practice is particularly problematic when it comes to children. Facial recognition technology has considerably higher error rates for children, in part because most algorithms have been trained, tested and tuned only on adult faces. In addition, since children experience rapid and drastic changes in their facial features as they age, facial recognition algorithms also often fail to identify a child who is a year or two older than in a reference photo. Because the facial recognition system matches live video with identity card photos collected by the country’s population registry, which are not guaranteed to be recent, it may be making comparisons with outdated images of children, further increasing the error rate.

Moreover, error rates substantially increase when facial recognition is deployed in public spaces where the images captured on video surveillance cameras are natural, blurred and unposed. Deploying this technology in Buenos Aires’s subway train system, with a daily ridership of over 1.4 million people and countless more passing through or near its stations, will result in people being wrongly flagged as suspects for arrest. When using a new technology such as live facial recognition, it is necessary to assess the risks of wrong identification and the affected fundamental rights.

The city government has denied that the facial recognition system identifies children, stating that there are no children listed in CONARC, which is false.[6] We have written separately to the mayor of the City of Buenos Aires, Horacio Rodríguez Larreta, expressing our concerns and offering specific recommendations for his government to address this issue.

To protect the rights of children, we urge Argentina’s Justice and Human Rights Ministry to immediately remove all children under age 18 from the publicly available version of CONARC, and to set up safeguards to prevent new children’s identities from being entered into this public database in the future. In addition, we understand that a legislative bill prepared by Argentina’s Agencia de Acceso a la Información Pública (Agency for Access to Public Information), which lost parliamentary status, had specific protections for children. We urge you to ensure that any new bill that reforms the existing national data protection law presented by the executive includes child-specific data protection measures that protect their privacy and their rights.

I take this opportunity to express to you my highest consideration and esteem.

José Miguel Vivanco
Human Rights Watch

[1] Resolución 1068 - E/2016, approved November 10, 2016, http://www.vocesporlajusticia.gob.ar/wp-content/uploads/2016/11/res10682016mj.pdf (accessed May 22, 2020).

[2] Statement to the media by the United Nations Special Rapporteur on the right to privacy, on the conclusion of his official visit to Argentina, May 6-17 2019, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24639&LangID=E (accessed May 22, 2020).

[3] Convention on the Rights of the Child, September 2, 1990, ratified by Argentina December 4, 1990, art. 16 & 40(2)(vii); Inter-American Court of Human Rights, Case of the Juvenile Re‐education Institute v. Paraguay, Preliminary Objections, Merits, Reparations, Costs, Judgment of September 2, 2004, (Ser. C) No. 112 (2004), para. 211; Inter-American Court of Human Rights, Juridical Condition and Human Rights of the Child, Advisory Opinion OC‐17/02 of August 28, 2002, (Ser. A) No. 17 (2002), para. 134; Inter-American Court of Human Rights, Written and oral interventions related to Advisory Opinion OC‐17/02; In I/A Court H.R., Juridical Condition and Human Rights of the Child, Advisory Opinion OC‐17/02 of August 28, 2002, (Ser. A) No. 17 (2002), p. 25; Secretaría de Jurisprudencia de la Corte Suprema de Justicia de la Nación: Interés superior del niño, 2013, https://sj.csjn.gov.ar/sj/suplementos.do?method=ver&data=intsupn (accessed May 22, 2020).

[4] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), adopted by General Assembly resolution 40/33, November 29, 1985, https://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf (accessed May 22, 2020), art. 8.

[5] See: “Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings,” Official Journal of the European Union, May 21, 2016, http://db.eurocrim.org/db/en/doc/2500.pdf (accessed May 22, 2020), art. 14; Government of Argentina, State Party Report to the United Nations Committee on the Rights of the Child, CRC/C/8/Add.17, December 22, 1994, https://www.refworld.org/docid/3ae6af730.html (accessed May 22, 2020), para. 191.

[6] Director General Fornos Carlos Tristan, Ministry of Justice and Security, Government of Buenos Aires response NO-2019-33745359-GCABA-DGEYTI to the request for information made by the Observatorio de Derecho Informático Argentino (ODIA), October 30, 2019, https://drive.google.com/file/d/1i4zBxv4ahP_xeRKwUQI4VOx7wpFQOVVc/view (accessed May 27, 2020).

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