Category: privacy

In early September, the Electronic Frontier Foundation (EFF) submitted an amicus brief to Ecuador’s Constitutional Court in support of a constitutional challenge filed by Ecuadorian NGOs, including INREDH and LaLibre. The case challenges the constitutionality of the Ley Orgánica de Inteligencia (LOI) and its implementing regulation, the General Regulation of the LOI.

EFF’s amicus brief argues that the LOI enables disproportionate surveillance and secrecy that undermine constitutional and Inter-American human rights standards. We urge the Constitutional Court to declare the LOI and its regulation unconstitutional in their entirety.

### Structural Flaws of the LOI

Our submission notes that:

> “The LOI presents a structural flaw that undermines compliance with the principles of legality, legitimate purpose, suitability, necessity, and proportionality; it inverts the rule and the exception, with serious harm to rights enshrined constitutionally and under the Convention; and it prioritizes indeterminate state interests, in contravention of the ultimate aim of intelligence activities and state action, namely the protection of individuals, their rights, and freedoms.”

### Core Legal Problems Identified

#### Vague and Overbroad Definitions

The LOI contains key terms such as “national security,” “integral security of the State,” “threats,” and “risks” that are either left undefined or framed so broadly that they could encompass almost anything. This vagueness grants intelligence agencies wide and unchecked discretion, falling short of the legal certainty standard required under the American Convention on Human Rights (CADH).

#### Secrecy and Lack of Transparency

The LOI makes secrecy the rule rather than the exception, reversing the Inter-American principle of maximum disclosure, which holds that access to information should be the norm and secrecy a narrowly justified exception.

The law establishes a classification system—“restricted,” “secret,” and “top secret”—for intelligence and counterintelligence information, but lacks clear, verifiable parameters to guide its application on a case-by-case basis. Consequently, all information produced by the governing body (ente rector) of the National Intelligence System is classified as secret by default.

Moreover, intelligence budgets and spending are insulated from meaningful public oversight, concentrated under a single authority, and eventually destroyed, leaving no mechanism for accountability.

#### Weak or Nonexistent Oversight Mechanisms

The LOI leaves intelligence agencies to regulate themselves, with almost no external scrutiny. Civilian oversight is minimal and limited to occasional, closed-door briefings before a parliamentary commission that lacks real access to information or decision-making power.

This structure offers no guarantee of independent or judicial supervision and fosters an environment where intelligence operations proceed without transparency or accountability.

#### Intrusive Powers Without Judicial Authorization

The LOI permits access to communications, databases, and personal data without prior judicial order. This enables mass surveillance of electronic communications, metadata, and databases across public and private entities—including telecommunication operators.

Such provisions directly contradict rulings from the Inter-American Court of Human Rights, which establish that any restriction on the right to privacy must be necessary, proportionate, and subject to independent oversight.

Furthermore, it contravenes the CAJAR vs. Colombia judgment, which affirms that intrusive surveillance requires prior judicial authorization.

### International Human Rights Standards Applied

Our amicus curiae draws on the CAJAR vs. Colombia judgment, which set strict standards for intelligence activities. Ecuador’s LOI falls short of all these tests. Specifically, it:

– Fails to provide an adequate legal basis for limiting rights.
– Contravenes principles of necessity and proportionality.
– Lacks robust controls and safeguards, such as prior judicial authorization and meaningful civilian oversight.
– Disregards related data protection guarantees and the rights of data subjects.

At its core, the LOI structurally prioritizes vague notions of “state interest” over the protection of human rights and fundamental freedoms. It legalizes secrecy, unchecked surveillance, and impunity for intelligence agencies.

### Conclusion

For these reasons, we strongly urge Ecuador’s Constitutional Court to declare the LOI and its regulations unconstitutional, as they violate both the Ecuadorian Constitution and the American Convention on Human Rights (CADH).
https://www.eff.org/deeplinks/2025/10/eff-backs-constitutional-challenge-ecuadors-intelligence-law-undermines-human