Privacy rights under Mexican law: emergence and legal configuration of a panoply of new rights.

• Author: Vargas, Jorge A.

1. INTRODUCTION II. PRIVACY RIGHTS IN MEXICO: USE OF THE TERM "PRIVACY RIGHTS" A. Personality Rights in Mexico B. Constitutional Rights: The Constitutional Doctrine of Embedded Privacy Rights C. Civil Rights D. Human Rights III. INTRUSIONS INTO "PRIVACY RIGHTS" UNDER MEXICAN LAW A. Inviolability of the Domicile 1. Search and Seizure Cases 2. Invasion of Home Privacy B. Interception of Correspondence C. Interception of Telecommunications D. Unauthorized Photographs, Films and "Peeping" E. Criminal Offenses 1. Sexual Harassment 2. Home Invasion 3. Crimes Against the Honor 4. Unlawful Deprivation of a Person's Liberty 5. Disclosure of Secrets 6. Illicit Access to Electronic Information F. Privacy Rights in the Workplace G. Appropriation of a Person's Name or Likeness H. Medical Examinations and Medical Files IV. THE INTERNATIONAL DIMENSIONS OF PRIVACY RIGHTS V. MEXICO'S RECENT LEGISLATION ON PERSONAL DATA A. Personal Data of Mexican Nationals Sold to U.S. Agencies B. The Personal Data Protection Act of 2003 of the State of Colima C. Proposed Legislation at the Federal Level VI. CONCLUSIONS I. INTRODUCTION

   Since the origin of humankind, scientific and technological developments have clearly constituted a powerful tool for humans to achieve higher levels of progress and enlightenment. The classical Greek legend of Prometheus, who--with the aid of Athena, the goddess of wisdom--went up to heaven and lit his torch at the chariot of the sun, bringing fire to man and thus allowing man to become superior to all other animals, (1) represents the eternal quest of man to control and shape his surroundings using tools that range from plowshares and shovels to swords and guns in the past, and from pencils to computers and video cameras in the present.

   Man's scientific and technological advancements have ultimately reached such a degree of sophistication that they now pose profound and pervasive threats to certain legal rights that have traditionally been considered inherently personal to each individual. These are known as the relatively novel but universal notions of "privacy rights." (2)

   The scientific and technological knowledge applied by NASA engineers to construct the Spirit rover that landed on Mars in January 2004, (3) is virtually the same scientific and technical expertise utilized by high-tech companies to build faster, better, and smaller computers for universities, banking institutions, and private companies; to develop digital cellular phones with video, television, and e-mail capabilities for the military, police agencies, investigators, and the general public; and to invent miniaturized recording devices consisting of microphones and video cameras commonly for TV and radio stations, reporters, detectives, and security guards as well as for factories, theaters, private and public buildings, manufacturing centers, commercial malls, and stores in general.

   All of these technologies--as well as those that are being designed and developed today to be in operation tomorrow--pose no small risks and threats to the integrity of the legal sphere formed by constitutional, civil, and human rights that belong exclusively to a single "individual." The time has come when scientific and technological developments have reached such a level of advancement and perfection that they may be able to probe into the most personal and intimate space of any individual. Today, these developments may not only capture, unveil, and record the information that shape and configure uniquely personal landscapes, they are also capable of capturing, gathering, transferring, disseminating, and exposing those landscapes with potentially devastating consequences of an economic, moral, psychological, and legal nature.

   Whereas in the past ultra advanced technologies appeared to be restricted to elites in government or scientific institutions, thus making it relatively easier to control their undesired effects upon the population at large, today these ultra modern technologies are easily available--virtually with no apparent restrictions--to the general populace. Therefore, the open accessibility of these technologies, jointly with their unprecedented capability of piercing the personal veil that surrounds the intimate realm of each individual with the power of inflicting serious injury or damage, raise serious and profound concerns from a legal and philosophical viewpoint.

   When one considers that the world has become a global village, (4) precisely because of these extraordinary scientific and technological developments, and that our planet in the dawn of the twenty-first century has been transformed into a closely interconnected space, it is evident that computers and cellular phones--as the symbols of these new technologies--are equally found in highly developed countries as well as in relatively poor, developing nations. The phenomenon of "globalization" has not only eliminated trade barriers but has, indiscriminately, showered ultra-modern devices upon urbanites and country dwellers alike.

   Interestingly, most of the legal systems in these foreign lands are not yet equipped with principles, legal rules, and institutions especially designed to provide individuals and legal entities with adequate protection against the intrusive and abusive use of these modern technologies. (5) In sum, the world, as it exists today, is being reshaped and transformed by the uncontrolled and virtually infinite power of this global scientific and technological revolution. This unprecedented revolution is affecting not only the conduct of business and commercial activities on a world-wide scale but, more importantly, it is influencing and legally redefining certain traditional concepts, such as privacy and privacy rights, the scope of human rights, and civil and constitutional rights.6 In the early twenty-first century, the most fundamental question continues to be: How are these inherently personal rights to be protected from unwanted intrusions posed by these rapidly advancing technologies?

   For many decades, Mexico has been the recipient of a constant flow of investments and modern technologies from the United States. (7) Because of the North American Free Trade Agreement (NAFTA), for example, the bilateral trade between our two countries has tripled, elevating the Mexican exports to an unprecedented total of $293 billion dollars in 2003. (8) Today, the United States is Mexico's largest foreign investor. (9) Moreover, Mexico's geographical contiguity with the United States has dramatically increased the flow of people across the border, with fifteen million American tourists visiting Mexico every year and forty-eight-and-a-half million Mexicans crossing the border as tourists, workers, or shoppers during 2003. (10)

   This substantial increase of U.S. trade and investments in Mexico has resulted in the proliferation of U.S. companies operating in that country, many of which supply the Mexican market with U.S. goods and services, including goods that are being manufactured with the latest technologies. (11) Moreover, since the advent of the maquiladoras in the late 1960s, (12) many manufacturing centers and assembly plants in Mexico have been designed and built boasting the most advanced technologies commonly used in the United States, such as video and teleconferencing facilities, computer systems and networks, satellite communications, video cameras in the workplace, and access to computer and telephone use by managers and employees for business purposes.

   It is not surprising, therefore, that U.S. investors and entrepreneurs have recently become keenly interested in finding out more about privacy rights under Mexican law. Does Mexico have a statute or code defining and enumerating these rights? Are privacy rights in Mexico equivalent to constitutional rights? What are the specific privacy rights enjoyed by workers in the workplace, and what are the specific obligations of their employers regarding these rights? Does Mexico also recognize privacy rights in the civil, criminal, fiscal, and administrative legal arenas? What are the privacy rights of Mexican nationals vis a vis commercial companies and other Mexican nationals? What are the privacy rights of Mexican nationals vis a vis the Mexican Federal government? And what legal remedies are provided by Mexican law when these privacy rights have been infringed upon?

   This article has been divided into six parts. Part One introduced the complex issues relating to Mexican Privacy Rights. Part Two examines the emergence, content and scope of privacy rights under Mexican law. Part Three describes and analyzes the current legislative enactments that govern privacy rights in Mexico today. Part Four discusses the legal symmetry between privacy rights in Mexico and international law as reflected in certain international conventions to which Mexico is a party. Part Five makes a cursory review of some recent and interesting judicial decisions rendered by Mexico's highest federal courts, including its supreme court, and Part Six offers some conclusions and recommendations.

2. PRIVACY RIGHTS IN MEXICO: USE OF THE TERM "PRIVACY RIGHTS"

   Privacy rights, informally known in Mexico as derechos de privacfa or derecho a la privacidad, have yet to acquire a formal and explicit recognition as part of Mexico's legal system. Notwithstanding that it is common in Mexico today to hear in conversations or read in journals and newspapers the words privacfa and privacidad in a multiple contexts, including cultural, economic, educational, legal, medical, political, religious, and social contexts. As of this writing there is no Mexican legislative enactment, whether a code, statute, or regulation, that explicitly enumerates, cites, or even simply alludes to the term privacy rights. (13)

   However, even though the legal denomination of privacy rights has not yet formally acquired a letter of naturalization in the Mexican legal landscape, it...