EFF Backs Constitutional Challenge to Ecuador’s Intelligence Law That Undermines Human Rights – Electronic Frontier Foundation

Analysis of Ecuador’s Intelligence Law and its Conflict with Sustainable Development Goals

Executive Summary

An amicus brief submitted to Ecuador’s Constitutional Court by the Electronic Frontier Foundation (EFF), in support of a challenge by Ecuadorian NGOs, posits that the Ley Orgánica de Inteligencia (LOI) is unconstitutional. The legal challenge highlights the law’s incompatibility with international human rights standards and, consequently, its significant obstruction of key Sustainable Development Goals (SDGs). The report finds that the LOI directly undermines SDG 16 (Peace, Justice and Strong Institutions) by eroding the rule of law, transparency, and accountability.

Direct Challenges to SDG 16: Peace, Justice and Strong Institutions

The LOI’s framework presents a structural flaw that is fundamentally at odds with the objectives of SDG 16, which calls for the development of effective, accountable, and inclusive institutions at all levels.

Erosion of Accountable and Transparent Institutions (Target 16.6)

The law systematically dismantles the principles of transparency and accountability necessary for strong institutions.

• Systemic Secrecy: The LOI establishes secrecy as the default for intelligence activities, directly contravening the principle of maximum disclosure. All information produced by the national intelligence system is automatically classified as secret, and budgets are shielded from public scrutiny, preventing accountability.
• Deficient Oversight Mechanisms: The framework lacks robust, independent oversight. Civilian supervision is limited to closed-door briefings with no substantive power, creating an environment where intelligence agencies operate without meaningful accountability, contrary to the requirements for strong institutions under Target 16.6.

Violation of the Rule of Law and Fundamental Freedoms (Targets 16.3 & 16.10)

The legislation presents a direct threat to the rule of law and the protection of fundamental freedoms, which are central tenets of the 2030 Agenda for Sustainable Development.

1. Vague and Overbroad Legal Framework: The LOI utilizes undefined or excessively broad terms such as “national security” and “threats.” This ambiguity fails to provide legal certainty, granting intelligence agencies disproportionate discretion and undermining the principle of legality essential for promoting the rule of law under SDG Target 16.3.
2. Intrusive Surveillance without Judicial Safeguards: The law permits access to private communications, metadata, and personal data without a prior judicial order. This enables mass surveillance, representing a severe infringement on the right to privacy, a fundamental freedom that SDG Target 16.10 aims to protect.

Broader Implications for Sustainable Development

Hindrance to Reduced Inequalities (SDG 10) and Civic Partnerships (SDG 17)

The negative impacts of the LOI extend beyond SDG 16, affecting other goals related to equality and collaboration.

• The unchecked surveillance powers enabled by the LOI risk being disproportionately applied to marginalized communities, journalists, and civil society actors, thereby exacerbating inequalities and contravening the spirit of SDG 10.
• The constitutional challenge, led by a partnership of international and local NGOs (EFF, INREDH, LaLibre), exemplifies the crucial role of civil society in promoting accountability (SDG 17). However, the law itself creates a chilling effect that can stifle such partnerships and civic engagement.

Conclusion: A Call for Constitutional Alignment with the 2030 Agenda

The amicus brief concludes that the Ley Orgánica de Inteligencia is structurally flawed, prioritizing ambiguous state interests over individual rights and freedoms. Its provisions are in direct conflict with the principles required to achieve the Sustainable Development Goals.

Recommendations

• The Constitutional Court of Ecuador is urged to declare the LOI and its associated regulations unconstitutional in their entirety.
• This action is presented as a necessary step to uphold the Ecuadorian Constitution, comply with international human rights law, and align the nation’s legal framework with its commitments to the 2030 Agenda for Sustainable Development, particularly the promotion of just, peaceful, and inclusive societies under SDG 16.

Analysis of Sustainable Development Goals in the Article

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 16: Peace, Justice and Strong Institutions

  This is the primary SDG addressed in the article. The text focuses on the challenge to Ecuador’s intelligence law (LOI), which is criticized for undermining the rule of law, creating non-transparent and unaccountable institutions, and violating fundamental human rights like privacy and access to information. The entire legal challenge described is an effort to strengthen justice and ensure institutions operate within constitutional and international human rights frameworks.

2. What specific targets under those SDGs can be identified based on the article’s content?

• Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.

  The article directly relates to this target by discussing how the LOI “undermines compliance with the principles of legality” and violates “constitutional and Inter-American human rights standards.” The submission of an amicus brief to Ecuador’s Constitutional Court is an action aimed at promoting the rule of law and using the justice system to address grievances.

• Target 16.6: Develop effective, accountable and transparent institutions at all levels.

  This target is central to the article’s critique. The LOI is described as creating institutions that lack accountability and transparency. Specific points include: “Weak or Nonexistent Oversight Mechanisms,” where intelligence agencies “regulate themselves, with almost no external scrutiny,” and “Secrecy and Lack of Transparency,” where intelligence budgets are “insulated from meaningful public oversight.”

• Target 16.10: Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements.

  The article highlights how the LOI directly contravenes this target. It notes that the law “makes secrecy the rule rather than the exception, reversing the Inter-American principle of maximum disclosure,” thereby limiting public access to information. Furthermore, it details how the law enables “disproportionate surveillance” and allows “access to communications, databases, and personal data without prior judicial order,” which is a severe violation of fundamental freedoms, particularly the right to privacy.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

• For Target 16.3 (Rule of Law):

  An implied indicator is the existence and enforcement of legislation that is compliant with constitutional and international human rights law. The article points to a negative status for this indicator by stating the LOI “contravenes the ultimate aim of intelligence activities and state action, namely the protection of individuals, their rights, and freedoms.” A positive measure of progress would be the court declaring the LOI unconstitutional.

• For Target 16.6 (Accountable Institutions):

  The article implies several indicators by highlighting their absence:

  • Existence of independent oversight bodies for state institutions: The article explicitly states that under the LOI, “Civilian oversight is minimal” and there is “no guarantee of independent or judicial supervision.” The establishment of such a body would be a positive indicator.
  • Transparency in public expenditure: The article notes that “intelligence budgets and spending are insulated from meaningful public oversight.” Making these budgets subject to public or parliamentary scrutiny would be a measure of progress.
• For Target 16.10 (Access to Information & Fundamental Freedoms):

  The article points to key indicators for measuring this target:

  • Legal guarantees for public access to information: The article criticizes the LOI because it “makes secrecy the rule rather than the exception.” The reversal of this principle in law would be a key indicator of progress.
  • Legal safeguards for privacy and against arbitrary surveillance: The article explicitly mentions that the LOI allows surveillance “without prior judicial order.” Therefore, the legal requirement for prior judicial authorization for any intrusive surveillance is a crucial indicator mentioned as a standard set by the Inter-American Court of Human Rights.

4. Table of SDGs, Targets, and Indicators

Source: eff.org