Pegasus: the «legalization of espionage» in El Salvador?

Julia Gavarrete*

Versión en español aquí.

In El Salvador 35 people -among journalists and activists- were tapped with Pegasus. In the newspaper El Faro alone, there were 22 of us. We revealed this on January 13, 2022, after three months of having subjected our cell phones to exhaustive analysis. It was espionage through a sophisticated software called Pegasus which is capable of hacking into phones, infecting them, and gaining access to everything: information, videos, photographs, and text messages. Everything means everything. Citizen Lab and Access Now were the two organizations that analyzed our phone devices from the beginning. Both concluded there was «obsessive espionage» to which most of El Faro’s staff was subjected: 17 months of interventions, from June 2020 to November 2021, and in some cases uninterruptedly. Those who’s phones were intervened included the directors, editors, administrative staff and journalists. In those months, those who had access to our information, knew the places we frequented -just by taking a look at the geolocation- and even our family problems. One would think that there were enough details to start a serious investigation to identify who was behind it and activate the alarms of an entire country, right? I put it this way because that’s what happened in Poland, where five cases of spying were enough to generate a huge scandal.

The news of espionage broke in Poland almost at the same time as it broke in El Salvador. When it was revealed in Poland that 35 people were spied on with a program that costs millions of dollars and that according to NSO Group, the manufacturer, is only sold to governments and state security apparatuses, the Polish Senate had already begun a discussion on the use of the software against members of the opposition, among other officials. John Scott-Railton, one of Citizen Lab’s researchers who led the investigation in El Salvador, was interviewed by the Polish Senate and was asked about the use of this program and its scope. As a result, the Senate asked the Polish government to investigate where the espionage came from, against whom it was used, as well as to consider the urgent need of enacting laws to prevent espionage of this level from happening again.

Pegasus is dangerous. In Mexico there were some journalists who were murdered after being tapped with Pegasus. Investigations confirmed that days before the crimes, the communications of these journalists had been monitored, as in the case of Cecilio Pineda who was murdered in March 2017. Who spied on him? Cecilio, like a score of journalists in Mexico, was spied on by the government of Enrique Peña Nieto using this program against activists, journalists and human rights defenders.

But let’ s return to the case of El Salvador. After release of the report that confirmed the espionage, the response from international organizations was forceful. Amnesty International (AI), which validated the analysis made by Citizen Lab and Access Now, for example saw a clear violation of human rights. Erika Guevara Rosas, Americas Director for Amnesty International was clear that «the use of Pegasus to monitor communications in El Salvador unveils a new threat to human rights in the country.» «The authorities must stop any efforts to restrict freedom of expression, and carry out an impartial and thorough investigation to identify those possibly responsible,» she said in a statement released by AI.

The Inter-American Commission on Human Rights (IACHR), its Special Rapporteur for Freedom of Expression (RELE), and the Regional Office of the United Nations High Commissioner for Human Rights for Central America, the Dominican Republic and the Caribbean (OHCHR) joined calls for the Salvadoran authorities to open an investigation and guarantee the «integrity of the victims.»

Contrary to what happened in Poland and far from what was requested by international organizations, in El Salvador thye «legalized spying.»  On February 1, 2022, just two weeks after it became known that in El Salvador they spy with Pegasus, the Legislative Assembly, dominated by the party of President Nayib Bukele, approved spying on citizens through «undercover digital agents.»  

The members of Congress of Nuevas Ideas, the ruling party, approved five reforms to the Criminal Procedural Code (CPP) to allow the police to «carry out digital undercover operations,» with the prior authorization of a judge and the National Attorney General’s Office. Despite the fact that it is determined in this way, for some experts on the subject the reforms are ambiguous -and dangerous- taking into account that the State is co-opted by the Executive and that the judicial system and the Attorney General’s Office answer to one person: the president. Furthermore, there are no guarantees as to how and why a person could be tapped. They say they will seek to prosecute criminals with these reforms. They also say that Pegasus will be used to fight drug trafficking and organized crime, but it has been proven that it is used against dissidents. 

The reforms to the CPP establish that all digital documents, electronic messages, images, videos or other data stored, received or transmitted through digital channels or electronic devices will now be evidence for criminal proceedings. What these reforms do not say on paper is that in order to extract this information, surveillance and monitoring of the selected target’s communications must be used. In declarations issued to El Faro about these reforms, Juan Antonio Durán, one of the judges most critical of the path now being taken by the Supreme Court of Justice with respect to favoring the government, sees in these reforms an open door to persecution: «The risk is that the investigations of processes are manipulated, freedom of expression is restricted and the police are used to persecute people.»

We are in an environment in which President Bukele has openly lashed out against media outlets that make him uncomfortable, in which he has accused the media of money laundering without any proof, and where the discourse of hatred towards the work of the press is escalating. This must be said. As it must be said that in a country where the use of a spying program was confirmed and the authorities, instead of investigating, moved the pieces so that there is now the possibility of criminalizing any critical voice. Let us not forget that on February 1 the Legislative Assembly was one step away from approving 17 reforms to the Law on Access to Public Information (LAIP) that would have meant the definitive dismantling of the LAIP. But it was stopped due to differences; apparently not all legislators were willing to push the button. But the most serious aspect of these reforms is that much of the information that until now has been published as ex officio or «unofficial information» could become reserved. Additionally, sanctions are proposed for citizens who share information classified as «sensitive.» 

As of today, contracts with public funds, the list of trips, and even an institutional work report is unofficial information. If these reforms are approved, whoever shares information of this kind could be punished with five to eight years of prison, as was established in other reforms that were approved the same day as the Internet Crimes Law, which contemplates as a crime the obtaining and transferring of information considered «of a confidential nature.»

We just have to put the puzzle together to get the full picture of what the Salvadoran government is aiming at. Let’s remember what I said at the beginning: with a program like Pegasus, whoever is behind it has access to our activities, our conversations, the information we receive and who shares it with us, and what we are investigating. The climate for journalism is complex, yes, and that is why I want to emphasize that even then we will not stop doing it. We will not stop approaching our sources and seeking, now more than ever, safer ways to talk. And I want to stay there: in a safe way to approach them to protect them and to protect the information that they entrust to us. In February it became clear to us that this is not just about legalizing espionage, but about criminalizing journalism and anyone who seeks to challenge power with information.

*Julia Gavarrete is a journalist for El Faro.

Photo: Hugo_34 via Freepik

Acerca de Justicia en las Américas

Este es un espacio de la Fundación para el Debido Proceso (DPLF, por sus siglas en inglés) en el que también colaboran las personas y organizaciones comprometidas con la vigencia de los derechos humanos en el continente americano. Aquí encontrará información y análisis sobre los principales debates y sucesos relacionados con la promoción del Estado de Derecho, los derechos humanos, la independencia judicial y el fortalecimiento de la democracia en América Latina. Este blog refleja las opiniones personales de los autores en sus capacidades individuales. Las publicaciones no representan necesariamente a las posiciones institucionales de DPLF o los integrantes de su junta directiva. / This blog is managed by the Due Process of Law Foundation (DPLF) and contains content written by people and organizations that are committed to the protection of human rights in Latin America. This space provides information and analysis on current debates and events regarding the rule of law, human rights, judicial independence, and the strengthening of democracy in the region. The blog reflects the personal views of the individual authors, in their individual capacities. Blog posts do not necessarily represent the institutional positions of DPLF or its board.

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