LEY 1266 DE HABEAS DATA PDF

Ley que contiene disposiciones generales del Habeas Data y el manejo Ley de que modifica el Código Penal, y crea un nuevo bien jurídico. a violaciones del habeas data financiero previsto en la Ley de También constituyen infracciones del régimen de habeas data por. Ley de “Por la cual se dictan las disposiciones generales del . El derecho de protección de datos personales o hábeas data fue.

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On the past years we have witnessed a big increase on the activities of cybergroups like Hbeas, LulzSec2 among others, that have created the term Hacktivism3 to back some of their actions as legitimate protests against the system.

According to this claims and the Colombian law we want to make an objective analysis on the new situations faced by the Colombian authorities nowdays on this field of study. Hacktivism according to the free crowdsourcing4 encyclopedia Wikipedia is: This tools include web site defacements5, redirects6, denial of service attacks7, information theft8, virtual sit ins9, typosquatting10 among other conducts. For the cyberlawyer11 the Hacktivism term could be a very controversial one because it contains many conducts that are very different among themselves and some of them according to the Dde of cybercrime Act12 are conducts that are sactioned by law with imprisonment sentences.

Hacktivism on an analogy with activism in our legal system may dqta multiple problems on subsisting, at least under the empire of Colombian law; But first, lets try to delimit what hacktivism is and how it clashes with Colombian legislation. Is an attack on a site that changes its appearance, is used in hacktivism to make a statement but also is used to show dara the vulneravility of the site, it can also lead to dxta more serious cyber crimes such as phishing Is a form of electronic civil desobedience taking its name from the Civil Rights Movement14 that is conducted using a DDoS15 attack.

This are large emails with large files to target an specific email.

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The act of constructing sites to suppport hacktivism. It copies the full content of a censured site and it is posted on domains or sub domains that are not censored. Is a method for blogging as an anonymous entity using an alias or a pseudonym, it uses different web tools that allow the blogger to keep an anonymous profile.

Hacktivism vs Colombian laws One of the purposes of the Constitution of was to break the permanent State of Siege16 that the Colombian State declared in order to criminalize any protest among society. The new constitution of had different mechanisms to control social protests such as State of Inner Conmotion Social protest is a constitutional right and as such it cannot be criminalized even under State of Inner Conmotion, but not always protest is protected as a constitutional right.

The use of the tutela18 or the knowledge of the law could help activists and their causes better than the use of violence and illegality on the social protest inside a democratic regime. The use of criminal law for conducts that with the common use of criminal law and constitutional law cannot be considered actions attached to a particular felony, such as the insult to national symbolism and flags Law can preview something as a crime but the offense could be ambiguous, that favors an extensive interpretation of it and can end up in criminalization of conducts that dont need any criminal treatment.

On this we could talk about the legislation on terrorism in Colombia and also about in some articles in the Act of that we will discuss later. Criminal law can preview an offense as a punishable but can get carried out on a disproportionate way on the punishment. The Act21 of modified the Colombian Criminal Code22 and created a new legally protected right of protection of information and data.

Its title is about the attacks on confidentiality, integrity and availability of data and computer systems. Its is composed of two chapters. On chapter one we see: Abusive access to an informatic system. The person that obtains unauthorized access to a protected or non protected informatic system can get a prison sentence from 48 to 96 months and a fine of to a current minimum montly salaries.

Illegitimate obstruction to an informatic system or telecommunications network. The person that impede, obstruct, the operation and normal access to an informatic system and to the data contained there or to a telecommunications network can get a prison sentence from 48 to 96 months and a fine of to a current minimum montly salaries.

Illegal interception of computer data. The person or entity that without a court order intercepts informatic data on its origin, destiny or within a computer system or electromagnetic emissions from a computer system can get a prison sentence of 36 to 72 months. The person that without proper authorization destroys, damages, erases, deteriorates, alters or eliminates informatic data, or a system for data treatment, can get a prision sentence from 48 to 96 months and a fine of to a current minimum montly salaries.

Use of malicious software. The person that without proper authorization produces, traffics, purchases, distributes, sells, sends, introduces or extracts, from or into country borders, malicious software or programs for damaging means, can get a prison sentence from 48 to 96 months and a fine of to a current minimum montly salaries.

Website Defacing for capturing personal data. The person that for illegal means and without proper authorization designs, programs, developes, traffics, sales, executes websites, links or pop ups, can get a prison sentence from 48 to 96 months and a fine of to a current minimum montly salaries when the illegal conduct does not configurate a crime with a bigger penalty. On the same sanction will incur the person that modifies the DNS system so that it makes an user enter a different IP address that is not the intended site when the conduct is not sanctioned with a bigger penalty.

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This article will increase the penalties on one aditional half to three quarters if the conduct is carried towards systems or networks owned by the goverment or State, or by the financial system foreign or local. If the conduct is carried out by a government functionary, in the incurrance of abuse of confidence, revealing in damage of a third party, revealing for obtaining benefit for himself or for a third party, using a third party on his use of good faith, and if the person responsible for this actions is the one in charge of the information he canget banned from working in similar jobs up to three years.

On chapter two we see: Theft with the use of computer systems and related means. This person will incur on the penalties prescribed on the article of the criminal code. Transfer of assets without consent. The person that for his own benefit using any informatic manipulation or any similar action that favors the non authorized transfer of assets in prejudice of a third party when the conduct doesnt configurate a crime with a bigger penalty can get from 48 to months in prison, and a fine from to minimum montly salaries.

The same penalty will be imposed to the one who builds, introduces, has or facilitates the computer program intended for the commision of the crime. The penalty can increase for this last two articles if the amount is superior to minimum monthly salaries.

The job of making laws for the digital world is truly a challenge, the internet 2.

Sociologist have discussed that social networks allow haveas to get a faster return on their social actions. On activism this could be that if we support one cause and the activist is linked or retransmited in some sort of way, it can lead to more supporters or also that the message can reach a much bigger audience.

This kind of conducts could be done on an anonymous way to prevent for example any kind of retaliations from society specially when the message is supported by a small minority of individuals in society as it could be done in plain sight. Examples of valid hacktivism in Colombia are clear with what we saw on for the discussion of the Bill of habwas was later known as the Ley Lleras26 and nowdays with the new Bill hbeas discussion at the Second Commission of the colombian Senate, the Bill of We see again hacktivists protesting28 the lack of discussion of this new Bill and also the rush that the Habsas Government habfas trying to apply to this whole process.

We saw and we keep seeing groups being created out of nowhere such as redpatodos. Some oppose because it did not had enough socialization among citizens, others because it violates their fundamental rights on free speech and creation of content inside the net under the new posibilities and also for daa innovation from happening, among many other reasons, unhappy internet users took the discussion inside the Senate about an actual copyright reform that will also listen to all parties involved.

This zeigeists or conventional dat or pre conceived ideas are making part of what is the social imaginary feeling that can fuel or frustrate social actions on the near future. Colombian law and Colombian Constitution 29 allows freedom of tought and expression on its article 42nd, and as on the information age30 we would have to consider that everybody datq has a computer and an internet connection is a media broadcast center of some sort.

The 51st Act of of the 18th of december of regulates the excercise of journalism in our country, as well as the statute of security promulgated by a legislative decree number of september 6th of which has some special dispositions of freedom of press and speech in conditions of disturbance of public order that are rather restrictive in counter to the actual world healthy tendencies for freedom of speech and press.

The article 37th of The Colombian Constitution allows citizens to peaceful assembly and manifest in a peaceful manner, it is a fundamental right and it gives the law the authority ee regulate this matter.

The Act and Hacktivism actions.

There is an actual discussion31 in matters of evidence like df an IP adress is personal data32 and can someone be liable of an illegal action conducted through his IP address. In Colombia we do not have an actual ruling to this date but we do have people captured34 for alleguedly committing one of the lej established on the Act, on this particular case charged by the prosecutor Patricia Pelaez of Art A, abusive access to an informatic system.

This capture on the Sophie Germain attack and the lack of one on the case between Anonymous and the ex president Alvaro Uribe35 may have happened because the accused on the Sophie Germain did not used any legal anonymous ip software such as TOR In orded to make somebody liable of the conducts of the Act this would have to be determined by specialists in computer forensics that eventually will determine if hageas machine asociated to the IP address was used with the knowledge of committing an illegal activity and that it wasnt just beign used remotely for the illegal conduct and without its owners consent or knowledge, as for the cyberlawyer the habdas use of computer forensics37 could mean winning or loosing a case.

This brings us to ciber crime on the Act and the convenience for the Colombian Prosecutor on charging big amounts of netizens on a massive ciber crime attack or a massive web sit in for example. This plus the actual need to ratify the Budapest Cybercrime Convention 38 and also the need for an actual data protection law that haeas proper regulation could protect the habead rights that the 15th article of our constitution contemplates that with responsible copyright law reforms that just do not fold for corporations lobbyst are the biggest challenges lye the lawmakers in our country as well for society on for a proper direct interaction with the net of our netizens.

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We could follow recommendations from netizens and consider building platforms big enough to have a direct socialization of our laws in our democracies.

The theory has been formulated by Hackett on his essay Revolutionise the way we govern ourselves39 and is up for discussion and also for implementation. Web sit ins is a very controversial issue. A web sit in is usually conducted through a DDoS attack which according to article B could be singled out as a pure Illegitimate obstruction to an informatic system or telecommunications network.

The accusation its also backed out with article H where it increases the penalty given in one half to three quarters when conducted towards networks and systems that belong to the State. Big internet personalities like John Perry Barlow have clearly40 opposed this kind of hacktivism tool. Also Cory Doctorow has opposed this means of protest41 I would have to back this positions. Specially Doctorow where he says that shutting some one up is no acceptable means for backing up free speech.

Most sit ins are conducted against government sites and rarely towards institutions like big lobbyst on copyright and companies that with their direct or indirect actions have created a state of unconformity that channeled through social networks and that when with a simple click on a button you are already taking part in the action let protest, it may be the actual need to protest considered as a constitutional right that we may be talking about here. This is something that requires further discussion among lawyers and policy makers and also law enforcers.

Activists will have to consider for their cause sake, that when the attack is conducted towards a government site or impedes the normal functioning haeas the State and affects other habwas rights, like for example, taking down the site of the Colombian Police d aff affecting the issuing xe the judicial certification g s. This can affect other citizens rights when in search of a job tthey need this kind of document for the job position.

Actions like this then should be considered as illegal. This for having so many hbaeas the DNDA integrating all artists or interested parties on the construction of a copyright law in Colombia that is in accordance to alll kinds of inputs and not just the old industry. It may have caused problems for regiistrations online but as we know according to Colombian law the registration is not mmandatory for copyright on most works and the registration is 126 available on physical means.

Any Hacktivist participating on a web site defacement in Colombia could be charged of website defacement for capturing personal data if this was the intempt of the action.

If the defacement is conduct just to make a statement charges could be article A or abusive access to an informatic system.

El debido proceso en la Ley de Habeas Data

Also the defacement could be used to capture personal data and also conduct a different action also punishable by the law such as articles I theft with the use of computer systems and related means and also article J transfer of assets without consent. So in Colombia 126 unauthorized website defacement is arguable as a legit protest. E Mail bombing is also another punishable hacktivism activity under article B, D and E.

The hacktivist could be charged of Illegitimate obstruction to an informatic system or telecommunications network, also computer damage and use of malicious software. This activities should be sanctioned as they do not represent an actual viral activism or a valid social statement. Code for building activism sites. This is a perfect hacktivism form that does not clash with the legislation in Colombia. If the site does not promote hate or violence or violates rights that can be attributed to an especific person it shouldnt have any problems in existing legally.

There are plenty of activism sites in Colombia that we know of we would like to mention like redpatodos. This hacktivism tool habeqs used usually for defense purposes. Under Colombian law this conduct it does not represent a crime.

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One of the most active web site mirrorings was the case ikwikiileaks vs USA, impass where wikileaks sitte was taken down42 by a US DNS provider, and also bloocked by Mastercard and Paypalpal without a court warrant. This carried out a big clashh from hacktivists against this companies and governments that originated this situation causing many DDoS attacks in consecuence. This may not be a very popular discourse speciallly after the policy reigning on security issues in most of our countries after the well known events of september the eleventh ofbut anyways anonymity is still a standing right.

One considering anonimity when the person is in the use of his freedom of speech. Considering anonymity when the person is the information source.

This last one is observed on our Constitution on the article 74 which establishes the inviolability of the professional secret. Allowing dissenters to shield their identities frees them to express critical minority views.