Parliament approved a diploma on metadata, which provides for preservation only with court permission

This Friday, Parliament approved new metadata text agreed between PS and PSD, which makes the retention of traffic and location data subject to a request for judicial authorization, which must be decided within 72 hours.

The text was approved in a final global vote: supporters and PAN voted for it, IL, PCP, BE and Livre voted against it, and Chega abstained.

The new version, intended to circumvent the Constitutional Court’s (CC) claim that parliament’s ruling governing access to metadata for the purposes of criminal investigations was unconstitutional, now provides that “traffic and location data may only be retained on the basis of reasonable judicial authorization.” “for the purpose of “investigating, identifying and suppressing serious crimes by the competent authorities.”

“The request for judicial permission to preserve traffic and location data is urgent and must be resolved within a maximum of 72 hours,” the text reads.

The diploma also stipulates that “to ensure the usefulness of a request for judicial permission to preserve traffic and location data, the prosecutor’s office will immediately inform” telecom operators “that the request has been submitted, and the data cannot be transferred.” be subject to liquidation until a final decision is made on its preservation.”

Subject to judicial authorization, the text provides that “the establishment and extension of retention periods referred to in the preceding paragraphs shall be limited to what is strictly necessary to achieve the intended purpose” and shall “cease as soon as unnecessary preservation is confirmed,” without setting a time limit.

This judicial dispensation is responsible for “the formation of the criminal sections of the Supreme Court, consisting of the chairmen of the sections and a judge appointed by the Supreme Council of the Judiciary from among the oldest of these sections.” It belongs.

Outside of these provisions is traffic and location data stored by telecom operators.

This data continues to be stored “under the conditions specified in the contract with the customer,” although the entities in question cannot access it “except as required by law” or specified in the contract.

Also rejected during this voting period was Chega’s proposal to amend the metadata ordinance, which would have stipulated that “only motion and location data generated by a felony suspect” could be retained, but did not change the articles intended for declaration. about the unconstitutionality of the CU.

This proposal was rejected by the votes of PS, PSD, PCP, BE and Livre, IL and PAN abstained, and the initiator voted in favour.

This is the second time that PS and PSD have come together in this legislature to develop a joint text on metadata, the last of which was approved in a final global vote in Parliament on 13 October and rejected by the Constitutional Court (TC) on 13 October. December 4. .

In this latest text, PS and PSD proposed storing traffic and location data in general for three months, with the possibility of extending this period for a further three months if customers expressly object.

The TC considered that this provision went beyond “the limits of proportionality in limiting fundamental rights,” emphasizing that the retention of metadata, regardless of period, should be limited and not generalized.

Earlier, on April 12, 2022, the Labor Code declared the norms of the so-called Metadata Law unconstitutional. This 2008 law transposed into the national legal system the 2006 European Directive, which the Court of Justice of the European Union declared invalid in 2014.

Metadata is contextual data that, without revealing the content of messages, allows us to determine, for example, who called, from which site, with which recipient, and for how long.