Brazil: back in session, proposition includes, in Marco Civil, warrantless access to logs

Last Updated: August 20, 2015

From August 20th, a commission at the House Of Representatives can have back in session a proposition that provides legal authorization for authorities to have, with no requirement of a warrant, access both to Internet connection records and to registrations of access to Internet applications. If approved, the proposal still must be voted by a plenary session.

One of the advances of Marco Civil da Internet no Brasil (Act nº 12.965/2014) was to determine that connection logs and on line logs are protected by secrecy, unless under an specific court order. This means that if data can identify you and reveal what you do on line, it has guaranteed the same confidence that your phone calls, for example. Today, to break phone confidentiality, it is necessary a judge review over the police authority request, to decide whether it is appropriated or not. This protection is essential as a privacy guarantee for all Brazilian citizens. Just as we do not want our phones tapped without a lawfully justification of a judge, we do not want all our on line activities to be kept under surveillance.

Nonetheless, a new legislative proposal aims to narrow that protection. As Rep. Alessandro Molon will express his position on the matter, after a request for examination, the Commission of Constitution, Justice and Citizenship may appreciate this Thursday morning the PL 215/2015 (examined along with PL 1457/2015 and PL 1.589/2015) which intends to establish harder punishment against ilegal practices like cyberbullying, phishing and on line child abuse. Presented last week by Rep. Juscelino Filho (PRP-MA), the replacement version of the text now under voting, among other measures, would add to Marco Civil what follows:

Art. 23-A. The police authority or the prosecutor, subject to the provisions of this article, may require to the person responsible for data retention, connection records and to registrations of access to Internet applications, to instruct police investigation or initiated investigative procedure to ascertain the practice of crimes against honor committed upon content made available on line.

Art. 23-A. A autoridade policial ou o Ministério Público, observado o disposto neste artigo, poderão requerer, ao responsável pela guarda, registros de conexão e registros de acesso a aplicações de internet, para instruir inquérito policial ou procedimento investigatório iniciados para apurar a prática de crimes contra a honra cometidos mediante conteúdo disponibilizado na internet.

As justification, Rep. Juscelino Filho stated that “the extension of rules whose assertiveness is intended should be broader in order to cover the practice of all virtual‘ or ‘cyber’ crimes, and not only those against honor, opening an undeniable even wider window for on line communication intrusion. What his plea doesn’t even try, however, is clarifying how providing easy and unsupervised access to user data would cope with State abuse of power. By taking away the sole strong protection to secrecy of on line communication, the proposal fails to secure any institutional control in favor of all million of innocent people (guess what, including congressmen) that uses any Internet application.

Once adopted, this amendment would allow access to user data without any scrutiny by the judiciary, but only through the sheer discretion of a police authority or a prosecutor. The law now in force establishes minimum criteria for this requirement, conditioning it, for example, to the existence of founded indications of specific a crime against honor. What is in question is who should make this evaluation. Assuming the presumption of innocence as a principle, as a fundamental right of all people, only a judge should have the power to provide the police a warrant for breaking the communication secrecy rule, always observing due process.

This change would actually remove any consistency or meaning of the provided inviolability and secrecy of the flow of users communications through the Internet, except by court order, as provided by law“, as expressly secured by art. 7º of Marco Civil. Narrowing fundamental rights and undermining process safeguards for Internet usage does not offers any stronger safety against cybercrimes. Instead, it only opens more space and opportunity to even bigger abuses, amplifying the already growing risks communication technology brings to civil society as a whole.

Update: September 20, 2015

PL 215/2015 was not voted. It may be reincluded in any new Commission of Constitution, Justice and Citizenship voting session, and problably will be back next week.

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