On March 22, 2019, the Decree amending, adding and repealing several general provisions referred to in Article 115 of the Law of Credit Institutions (the “Decree”) was published in the Official Gazette of the Federation (“DOF”), which entered into force on March 23, 2021.
By means of the Decree, several amendments and additions were made to the General Rules that regulate credit institutions, as well as operations through digital platforms, in compliance with the legal framework for the prevention of money laundering and the fight against the financing of terrorism.
The Decree provides for the obligation of banks to obtain and keep the real-time geolocation of the device through which their customers or users make use of electronic banking services.
Pursuant to rules 4 Ter, 16 Bis and 24, the Ministry of Finance and Public Credit (“SHCP”) requires credit institutions to collect the geolocation of the devices at the time they are used: (i) open an account or enter into a contract through non-face-to-face devices, (ii) integrate the user’s identification file; or (iii) carry out operations on a non-face-to-face basis.
In order to start with the geolocation of the devices, users and customers of digital services are required to give their express consent and enable the function within the configuration of their devices.
If they do not consent and enable the aforementioned function, the Decree establishes that credit institutions are obliged not to carry out transactions with users in a non-face-to-face manner, i.e., through digital banking services.
It is considered that the measure may affect various human rights, so it is possible to challenge its content through the indirect amparo trial and even request the suspension of its application during the processing of the procedure, in order to prevent its application until the defense is resolved and, consequently, to be able to continue using digital banking services without enabling the geolocation function.
It may even be contrary to the criteria that the Supreme Court of Justice of the Nation has sustained in some cases. Therefore, it is estimated that, if challenged, the unconstitutionality of the use of real-time geolocation may be confirmed in this particular case.
We hope you find this information useful. The complete publication can be found through the following link:
https://www.dof.gob.mx/nota_detalle.php?codigo=5554909&fecha=22/03/2019
