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10 December 2018
The Superior Court of Justice recently appraised a noticeable theme regarding personal data protection from a criminal law perspective: the validity of evidence obtained by the police without specific judicial order to access information and conversations recorded in instant messaging apps.(1)
The precedent has had a strong effect on investigations of varying scope and importance. Two recent examples occurred in the wake of high-profile anti-corruption and anti-money laundering investigations, wherein federal prosecutors used:
The use of mobile phone records is now common practice in white collar criminal investigations. However, this practice has grown considerably since the emergence of smartphones and is now the subject of judicial discussions worldwide.
For example, US judiciaries have debated the lawfulness of digital evidence taken by the police without a warrant to seize either the device or its messages.(2) In this regard, the sectioning, definition, attribution, reconstruction and preservation of evidence have become key challenges in criminal investigations.
In the present case, no formal measures were taken to extract data or identify the user to scrutinise the crime, the crime scene or its individualisation. Further, the evidence was deemed inadmissible because the police had accessed the private messages directly and without a warrant during the arrest.(3) The court pointed out that communication and third-party privacy could be unduly affected without a warrant specifying the messages to be accessed.(4)
However, the Superior Court of Justice's position on this matter remains unclear, since there are different precedents from its different criminal justice panels. For example, while ruling on a car wash operation case, Justice Felix Fischer of the fifth panel ruled that "the secrecy referred by the [Article 5, XII of the Constitution] is related to phone and telematic tapping, which means the data communication, not the data itself".(5)
However, the same fifth panel decided differently and in accordance with a position of the sixth panel. Justice Ribeiro Dantas followed the sixth panel's understanding(6) that text and voice messages are protected by the principle of phone secrecy, and that this should include not only the transmission of data stored on a device, but also the data itself, which means enforcement agents must file a court request to obtain a warrant and have due access.(7)
Enforcement agencies have resisted such restrictions to judicial warrants and challenged legislative changes that allow warrants to be non-specific regarding place and scope. This resistance is also present outside Brazil, raising concerns and doubts about whether this practice complies with due process of law and other constitutional principles.
Brazil's data protection agenda has been in the spotlight since Congress passed the General Data Protection Law (Law 13.709/18) in August 2018. The law will become effective from early 2020 and establish ground rules for personal data collection, treatment, storage and sharing for all sectors of the economy, as well as the public administration. However, the law will not set out rules regarding public safety, which could generate further controversy over the limits (or lack thereof) to authorities' investigative powers.
Besides the difficulties regarding investigative orders and the effectiveness of criminal prosecution for business-related crimes, recent case law demonstrates that reconstructive evidence in criminal law has reached a technical milestone; however, it still requires further reflection from a procedural standpoint in order to safeguard the value of the rule of law.
For further information of this topic please contact Thiago Luis Sombra or Rogério Fernando Taffarello at Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados by telephone (+55 11 3147 7600) or email (firstname.lastname@example.org or email@example.com). The Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados website can be accessed at www.mattosfilho.com.br.
(3) Similarly, the First Circuit Federal Court has accepted the evidence of two defendants charged with drug possession which demonstrated that the police officers had searched their phones after the arrest without a warrant. See here.
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Rogério Fernando Taffarello