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News - 28/02/20

Public hearing, at Supremo Tribunal Federal (Brazilian Supreme Court), discusses breach of confidentiality, regarding the Mutual Legal Assistance Treaty in Criminal Matters signed by Brazil and the USA

On February 10th, the Supremo Tribunal Federal (“STF”) hold a public hearing regarding the Ação Declaratória de Constitucionalidade[1] 51 (“ADC 51”), which was brought to the court by the Federação das Associações das Empresas Brasileiras de Tecnologia da Informação[2] (“Federação Assespro”).

The case aims to declare the constitutionality of articles of the Brazilian Civil Procedure Code and the Brazilian Criminal Procedure Code, regarding international cooperation, and the Decree 3.810/2001, which enforced in Brazil the Mutual Legal Assistance Treaty in Criminal Matters  (“MLAT”), signed by Brazil and the US in 1999.

The provisions of the Brazilian Procedure Codes and of the MLAT have not been applied by the Brazilian lower courts, by the justification that tech companies located in Brazil, such as Facebook and Google, must control the data located in their servers, including the data on foreign servers, so that they could abide to Brazilian judicial orders for breach of confidentiality, without the need to use of instruments of international cooperation. Based on this understanding, Brazilian lower courts have precedents holding that tech company’s endurance in following the judicial orders represents a sovereignty violation.

The Federação Assespro mentioned in the complaint the Inquérito 784/DF, judge by the Superior Tribunal de Justiça[3]  (“STJ”) in April 14th, 2013. In this precedent, the court established that tech companies filiated and active in Brazil shall be submitted to Brazilian legislation, since the data that it’s controlled by the companies cannot be subdued by policies of other States or of the companies. Based on this decision, STJ build a precedent on this matter following the mentioned reasoning.

In the ADC 51, the plaintiff supports that Brazilian courts in order to decree a breach of confidentiality of a data located on foreign grounds need, first, to request an international cooperation with the country where the data is located, so that this country orders the breach of confidentiality of the data by its own legislation. This procedure, as the plaintiff claims, would observe the provisions of the Procedures Codes and the MLAT, recognizing the constitutionality of such legal provisions.

At the public hearing, more than 20 companies representants shared their opinion on the matter, such as specialists and public authorities, which diverged about the constitutionality of the agreement. Facebook, for instance, supported that the company must respect US law regarding data confidentiality, being forbidden to provide company data without a valid legal order issued by US courts. Following this argument, Yahoo Brasil also supported that is only possible to provide confidential data located on foreign borders with a legal order valid in the country were the data is located.

In the other hand, Brazilian Minister of Justice, Sérgio Moro, argued that the MLAT agreement prevents collection of data located in other countries, given that requests for international cooperation are often not fulfilled, what damages the development of cases.

In the same way, the Brazilian Minister of Justice sustained that the practice used by lower courts does not disrespect MLAT, since the agreement was signed to promote the search of criminal evidence, not disable it. Finally, Moro emphasized that Brazilian courts should observe article 11 of the Brazilian Civil Rights Framework for Internet (Law nº 12.965/2014), which establishes that all data collected in Brazil must be regulated by the Brazilian law.

The ADC 51, which takes hold at the Brazilian Supreme Court, STF, still does not have a trial date, and follows under report by the Supreme Court Justice Gilmar Mendes.

 

 

[1] Ação Declaratória de Constitucionalidade is a type of procedure in Brazil law, which aims to affirm a constitutionality of determined law or legal dispositive. This kind of case is always judge by the Supremo Tribunal Federal (Brazilian Supreme Court).

[2] A Federação das Associações das Empresas Brasileiras de Tecnologia e Informação is a union of the technologies companies of Brazil.

[3] Superior Tribunal de Justiça is a special court in brazil, which, briefly, is responsible to unify the Brazilian jurisprudence regarding federal law.