This Monday, the President of the Republic promulgated a new parliamentary decree regulating access to electronic communications metadata for the purposes of criminal investigations, which was approved after being vetoed due to unconstitutionality.
The decision of the head of state, Marcelo Rebelo de Sousa, who this time avoided going to the Constitutional Court, was announced through an entry on the official website of the President of the Republic on the Internet.
The President of the Republic decided to promulgate the new decree, “given that the preservation of traffic and location data is now subject to court approval,” the note said.
This decree was approved by the Assembly of the Republic on January 5 with votes in favor of PS, PSD and PAN, votes against IL, PCP, BE and Livre, and Chega abstaining. According to the parliamentary portal, he was sent to the Belém Palace on January 17.
In an effort to respond to two previous Constitutional Court rulings on unconstitutionality on this issue, the text agreed between the PS and PSD stipulates that traffic and location data should be retained when applying for judicial authorization, which must be decided within 72 hours.
Under the terms of this new decree, “traffic and location data may only be retained with the permission of the court” for the purposes of “investigation, detection and suppression of serious crimes by competent authorities.”
In addition to this principle, a provision has been introduced that “a request for judicial permission to retain motion and location data is urgent and must be resolved within a maximum period of 72 hours.”
The ruling stipulates that, pending possible permission, “the prosecutor’s office shall immediately notify” electronic communications service providers “of the filing of the request, and the data may not be subject to deletion until a final decision has been made on its retention.”
Judicial power “is the duty of forming 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.”
Subject to judicial authorization, the ruling places no restrictions on “the establishment and extension of periods for the retention of motion and location data” but establishes as a principle that “they shall be limited to what is strictly necessary” for the purposes of a criminal investigation “it shall cease as soon as only the need for its preservation will be confirmed.”
The previous metadata law, which has since been declared unconstitutional, provided for universal retention of metadata for a period of one year. In a subsequent decree, the storage period for data on traffic and the location of citizens in general was reduced to three months, can be extended to six months and, in extreme cases, with court permission, to one year.
By allowing the retention of traffic and location data only through a request for judicial authorization, this new decree moves away from the option of preventive and broad preservation of metadata that was declared unconstitutional by the Constitutional Court in its April 2022 and December 2022 rulings. 2023.
The now promulgated order, like the previous one, treats traffic and location data differently from “data relating to the civilian identification of subscribers or users of public communications services or a public communications network,” from “other database” and “IP protocol.” addresses assigned to the connection source.”
Regarding these three groups of data, it is established that operators “must retain them for a period of one year from the date of termination of communication” for the purposes of criminal investigation.
Author: Lusa
Source: CM Jornal
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