This Monday, the President of the Republic sent to the Constitutional Court a parliamentary resolution regulating access to electronic communications metadata for the purposes of criminal investigation, as he promised.
This decision of the head of state, Marcelo Rebelo de Sousa, was announced through an entry on the official website of the President of the Republic on the Internet.
“For reasons of legal certainty, the President of the Republic has decided to submit the decree of the Assembly of the Republic, which regulates access to metadata concerning electronic communications for the purposes of criminal investigation, to a preventive review of constitutionality, in accordance with the attached request,” the statement said. addressed to the Constitutional Court,” the note says.
This decree was approved by the Assembly of the Republic in a final global vote on October 13 with votes in favor of PS, PSD and Chega and votes against IL, PCP, BE and Livre, and was sent to the Belém Palace on November 2. ., after correcting the final wording.
The Constitutional Court, in a ruling dated April 19, 2022, declared unconstitutional the rules of the so-called metadata law, according to which telephone and Internet service providers must store data related to customer communications, including origin, destination, date and time, type of equipment and location – for a period of time for one year, for possible use in criminal investigation.
Following this decision, Marcelo Rebelo de Sousa promised to initiate a preventive review of the new decree on this matter, believing that “there cannot be a shadow of doubt” about its constitutionality.
In today’s letter addressed to the Constitutional Court, the President of the Republic states that “the legislator has now, in his own words, declared that the regime in question has been brought into conformity with the findings of the Constitutional Court’s ruling” and argues that “it is therefore important to check whether the court considers that the Assembly of the Republic has succeeded in its deliberations.”
According to the head of state, “despite the fact that the storage period for traffic data has been reduced, this can be interpreted as an opportunity to continue to allow their indiscriminate collection, which may not correspond to what was decided by the Supreme Council.” court in the said decision.”
“The court then stated that the indiscriminate collection of this data would itself violate the principle of proportionality, as a result of which the assessment of other elements, including timing, would lose relevance,” he points out.
According to Marcelo Rebelo de Souza, “it is equally important to check whether the notice to the recipient, as provided for in the new version of Article 9, complies with the requirements contained in the above-mentioned judgment of the Constitutional Court, especially with regard to respecting the principle of proportionality.”
The President of the Republic, “taking into account the above and taking into account the importance of ensuring legal certainty in such a delicate and controversial issue,” submitted for preventive review of the constitutionality of the provisions contained in Article 2, in those parts where it amends the articles. 4 .º, and in combination with 6 and 9 of Law No. 32/2008 of July 17, the so-called metadata law.
Metadata is contextual data that, without revealing the content of messages, allows us to determine, for example, who called, from what location, with which recipient, and for how long.
The so-called Metadata Law of 2008 transposed into the national legal system a European directive from 2006, which the Court of Justice of the European Union declared invalid in 2014. Referring to the primacy of European law and the Constitution, the National Data Protection Commission (CNPD) decided in 2017 to “withdraw the application of this law in the situations brought before it.”
The April 2022 ruling of the Constitutional Court was prepared in response to an appeal to Ombudsman Maria Lucia Amaral to declare articles 4, 6 and 9 of this law unconstitutional.
The court considered that the rules in question violate the principles enshrined in the Constitution, such as the right to preserve private and family life and the prohibition of access to personal data of third parties, except in exceptional cases, noting that “the legislator has not prescribed the need since the storage of data takes place on the territory of the European Union.” Union”.
The order, sent for preventative review today, stipulates that movement and location data will be kept “for a period of three months from the date of completion of the communication, this period being deemed to be extended to six months unless the owner objects.”
These deadlines may be “extended for a period of three months to a maximum of one year by decision of the court at the request of the Attorney General of the Republic” when the investigation of serious crimes is at stake.
The final text approved by Parliament stipulates that data must be stored “in Portugal or in the territory of another Member State of the European Union” and that holders must generally be notified “within a maximum of 10 days” when their data is accessed.
Author: Lusa
Source: CM Jornal
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