Constitutional Court warns that metadata retention should be limited, not widespread

The Constitutional Court argues that the preservation of communications metadata, regardless of period, should be limited rather than generalized, warning that the solution found by parliament still includes citizens not suspected of criminal activity.

This Monday, the TC declared unconstitutional the rule in this ordinance that requires the widespread retention of traffic and location data “for a period of three months from the date of termination of communication, noting that this period is extended to six months unless otherwise permitted.” holder if he objected.”

In the ruling underlying the decision, the TC emphasizes that legislators “limited themselves to limiting these categories of data to the retention period” that was provided for in the metadata law and which had already been declared unconstitutional by the TC in April 2022.

According to the CU judges, taking into account that the April 2022 ruling had already stated that the metadata law had exceeded the “limits of proportionality in relation to subjective scope” and that the new decree did not change this scope, there was no “how not to uphold the decision of unconstitutionality rendered at that time.”

Policing “continues to be general and undifferentiated, rather than selective, in that it does not affect in a direct, objective and non-discriminatory manner the persons relevant to the objectives of the criminal act, but rather reaches (or, better said, continues to reach) subjects against whom there is no suspicions of criminal activity,” it is indicated.

“It’s worth talking about as possible suspects in committing crimes,” the judges note.

Thus, the Tax Code asserts that in the parliamentary resolution “the legislator did not overcome the tests of the principle of proportionality – be it necessity or proportionality in the strict sense of the word.”

“In order for this to happen, the temporary limitation carried out is not enough, and it is inevitably necessary that a limitation be carried out on the subjective scope of the norms,” it is emphasized.

The judges say they are aware that Portuguese law already provides for the existence of a database, namely a database of telecom operators used for billing purposes, which also provides for the storage of traffic data for six months.

However, the judges emphasize that, in addition to the purpose of storage being “entirely different,” storing data for billing purposes is “subject to the consent of the data subject.”

Referring to the government’s original Metadata Bill, which specifically provided for access to operators’ databases for the purposes of criminal investigations, the judges said owners consented to their data being retained only “to the extent necessary and for the time being”. necessary for the commercialization of electronic communications services.”

“In short, this means that this discipline cannot be used for comparison with the regime in question,” the TC emphasizes, despite the fact that it does not comment on “the constitutional possibility of access by criminal investigation authorities to data stored by operators.” in accordance with other legal provisions.”