The vein of messaging apps in case of alert

In Spain, telephone operators are obliged by law to support the government when it needs to send an SMS, although the ambiguity of its use allows a person to receive anything from an election message on their mobile phone to a coronavirus alert. 

Thus, Emiliano García-Page, President of Castilla-La Mancha, ordered the sending of 1.9 million messages to the mobile phones of the region's citizens with the intention to inform about the situation of the coronavirus and the local impact. 

No one asked for the information, it simply began to arrive without the recipient being clear about why they were receiving it, or who had provided their number, or if in any case, it would generate any cost in their payment or pre-payment rate. Nor did the nearly two million people give their consent when, in November last year, they were stunned by a series of SMS messages from Pablo Casado, leader of the Popular Party, inviting people to vote for him in the general elections.  

Although there are regulations on the protection of personal data, based on the European Data Protection Supervisor (EDPS) which has been in force since May 2018, people do not understand why they receive unsolicited messages if they have not shared their private number, let alone given express authorisation to any authority or commercial entity or political marketing company to invade their privacy. 

However, the Government of the Socialist Pedro Sánchez, in view of the emergency of the pandemic, proposes going one step further, in accordance with the provisions of article 4.6 - Title 1 - of the draft Telecommunications Law: "The Government may, in exceptional cases and on a temporary basis, rule that the General State Administration shall assume the direct management of certain services or the operation of certain electronic communications networks, pursuant to the revised text of the Public Sector Contracts Act, approved by Royal Legislative Decree 3/2011 of 14 November, to guarantee public safety and national defence.

What does the Spanish government propose? The preliminary draft includes using WhatsApp, Telegram or Facebook Messenger (technology multinationals), placing them on the same footing as telephone companies for the purpose of using, when required, social networks and Internet messaging services classified as Over The Top (OTT) services. 

Multinationals would be registered with the Registry of Operators, thus having the same obligations as a telephone operator and, therefore, the duty to transmit public alerts when the government considers it necessary and as often as required.

What are these considerations? The person could receive a message via WhatsApp or Telegram or Facebook alerting them to some danger, risk or threat affecting national security or the lives of citizens.  

The Sánchez government argues that "privacy will not be altered", arguing that the legal changes do not involve reading messages or intercepting them. 

Would this go against European regulations? Not at all. In fact, the use of digital messaging services has been discussed for some time in Brussels under the auspices of the Body of European Regulators for Electronic Communications (BEREC), and the draft is based on an EU Directive (2018/1972) of the European Parliament and the European Council of 2018, which covers electronic communications services. 

In one of the sections of the text, presented at a hearing on September 11, it indicates that "telephone operators" such as Orange, Vodafone or Movistar must "transmit public alerts to citizens" in the event of major disasters or imminent emergencies; this is a specific fact that has already been happening, but the next step is to include all messaging platforms.

In Spain, there are more than 54 million mobile lines, 94% are smartphones and of this core 62% usually use social networks preferably: YouTube (89%); WhatsApp (86%); Facebook (79%); Instagram (65%) and Twitter (53%). 

According to reports from Digital 2020, 73% of Spaniards are "concerned" that their personal data will be used for purposes they are unaware of, both in the present and in the future. 

With regard to the draft bill, a well-known group of Spanish lawyers, interviewed exclusively, agreed that the measure should also allow people the right not to be included in potential official messages.  

With this in mind, Ismael Oliver reminded the audience that the preliminary draft is subject to modifications until October 13 and that a series of amendments are expected to be incorporated. 

The head of the prestigious law firm Oliver Abogados considers that the preliminary project, as it stands at present, could give rise to many positions, mainly one that is somewhat alarmist: "What we might think is an interference because the Government could be interfering in the privacy and communications of citizens". 

However, the prominent legal expert, who has led here in Spain the case of the arrest of Alonso Ancira, President of Altos Hornos de México, says that the text "does not say that" since it does not speak of interventions or interceptions but of the use of digital media. 

"The time of the church bell to warn of the fire is over... in view of the situations we are experiencing throughout the world, there are media that are more effective and faster today," he said. At the same time, Oliver brings up the fact that the government can use SMS to send messages to the population and "nobody has been alarmed" and public bodies are authorised to do so. 

 So, what is it that is disturbing? 

- The news about the draft and the future law, it is not so much its content that should not alarm us, but the use that can be made of it; and it will probably require a regulation that develops the use, not interception... let's remember that words are very important, here we are not talking about intercepting, we are talking about using, channelling, that means of transport that does not cease to be one.  

Oliver emphasises that it is part of the risks of this digital era in which leaving no trace or totally preserving privacy is really complicated and regarding the use of new technologies there are both positive and negative aspects.

"I have been in contact with top CEOs of large companies and none of them has a smartphone... this is very curious; in fact, even a CEO of a major telephone company didn't have one as he didn't want people to know where he was," says the lawyer. 

As for the draft, Oliver points out that when it comes to regulating, it is a good idea "because they could just do things without it", and so when regulating, there are limits and the rule of law establishes them, and he says it very clearly "although a risk exists".  

Jacobo Teijelo, for his part, believes that it is very dangerous "for the government to enter into this type of terrain" and that we should be "clear" to avoid giving it powers in a propaganda role. 

The renowned jurist led by Teijelo Abogados considers it "suspicious" and above all recommends that when applied in a state of alarm or emergency, it should be approved by a judicial authority and that it should serve to send out warning messages but that they should be "neutral" and without any propaganda. 

"In any case, there should be limits, and people should be able to decide whether they want to mark messages as spam or not, or simply not to receive them because they have the right to do so," he stresses.

Could there be an excess regarding the preliminary draft? 

-Of course, one thing is that certain messages can be conveyed by an emergency, but those messages must not have any bias on the part of the authority. We must avoid not giving official slogans, any kind of official government communication is suspicious because they always want to win the day. And I say it concerning this or any other government... we must ensure - by all means - that this position of being able to communicate with everyone does not become, as in the times of Franco, the compulsory part of Radio Nacional de España for all radio stations.  

Teijelo stresses that "right now" the war is in communications, not only in terms of media but also in terms of content, which is why it is a priority to avoid any bias and avoid manipulation. 

However, he points out that in Spain certain bugging and tapping has been authorised for some time now, such as SITEL used by the National Police, the Guardia Civil and the National Intelligence Centre; it is a computer tool for telephone tapping. 

With regard to the draft project that will allow messages to be sent to the government via WhatsApp, Telegram and other digital applications, Tejeiro said that these companies are not based in Spain "so interventions have to be more traditional". 

In any case, he adds, he is convinced that "passive control of communications" is one thing, whereas "intervention" is another in terms of content and message delivery.

"This is not a problem of the current government; it was the PP government that set up the SITEL system. All governments are particularly fond of controlling communications and propaganda... They all work the same way," says Teijelo.

Controlling the masses means influencing their opinion, as well as their mood: "In Spain, in the recent past, there were two television channels, later there were five and four newspapers under control; but when the Internet comes in, people start to share, read and search on their own; what a coincidence, that now their interest is focused on controlling this public opinion... that is the problem behind it". 

In turn, Ricardo Bocanegra stresses that "the fundamental key is in the use" of these advantages, because they can be used appropriately or improperly. 

"Anything that is in the general public interest and has a public utility through new technologies is welcomed to me as long as it is used appropriately; this is an important advantage", the lawyer emphasises. 

The Spanish lawyer who runs the Gestoría Bocanegra - one of the most reputable on the Costa del Sol - points out that under no circumstances would it be acceptable for this regulation to lead to overdoing it or intruding the privacy of users. 

"I understand that the draft is designed to inform people about important things and, in any case, the best thing would be to prevent abuse by the competent authority by means of a series of rules that would stop abuse from occurring," reflects the prominent jurist. 

With the potential of applications and the power of social networks, it is to be expected that many changes will arise in this respect. To what extent will it be necessary to cede privacy in the interests of national security or to preserve stability in the face of a threat of any kind? The new Gold Vein...