The Bar Association raised reservations on Thursday to the Government’s proposal on metadata, considering that crimes whose investigation guarantees access to data should be listed, instead of referring to crimes provided for in the Criminal Procedure Code.
This position is contained in an opinion of the Bar Association (OA) on metadata sent to the president of the Parliamentary Committee on Constitutional Affairs, Rights, Freedoms and Guarantees, following a request to the OA to comment on the bill submitted to parliament.
According to the opinion, to which Lusa had access, the legislator’s option regarding the catalog of crimes that can justify access to data for criminal investigation purposes when referring to the crimes provided for in sections 1 and 2 of article 187 of the Code of Criminal Procedure (CPP) “doesn’t look good”.
“Instead, it should be chosen to list the crimes whose investigation can support access to data,” defends the OA.
The OA also warns that, although the Government diploma mentions that the judicial authorities have “clearly and unequivocally” been granted the competence to request the company that offers networks and/or electronic communications services, “it is not clear from the text of the proposed law the judicial authority that, at each procedural stage, may determine the request for data.
Likewise, OA points out that the Government diploma determines that “the data sent that does not serve as evidence is destroyed after the decision that ends the process becomes firm”, but nothing says “about the form, time and terms in which such destruction will be carried out”.
“The need for reasoning must also be expressed, that is, the reasons why access to the data is essential for the discovery of the truth or that the proof would otherwise be impossible or very difficult to obtain”, proposes the opinion of the OA.
The opinion also argues that “the means to which the interested party can be resorted (for the investigation) must be foreseen to guarantee the effective protection of their rights” and adds that it is also “desirable to determine the subjects in relation to which it is allowed access to data by criminal investigation authorities”
On the other hand, the OA points out that, although “it is granted that the technical conditions for the transmission of data are densified in an ordinance, the lack of establishment of the criteria and conditions for its transmission, that is, in terms of security, is not acceptable”
Based on the foregoing, OA understands that the Government’s proposal on metadata “raises reservations, namely, in what “refers to its conformity with the Fundamental Law and with the Law of the European Union (HEY).
The OA opinion is signed by Angela Cruz, member of the OA General Council.
The Government’s legislative initiative aims to establish the rules for access, for criminal investigation purposes, to data processed by companies that offer networks and/or electronic communications services, amending the 2004 law on “Processing of personal data and protection of privacy in the electronic communications sector” and repeals the 2008 law on the conservation of data generated or processed within the framework of the provision of electronic communications services.
The government diploma was produced as a result of the ruling of the Constitutional Court, which declared the unconstitutionality, with general mandatory force, of the regulations related to the obligation to retain data for the exclusive purposes of criminal investigation.
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The opinion of the OA also alludes to the implications derived from the Regulation of the European Parliament and of the European Council in the sense of prohibiting the conservation of data for the sole purpose of investigating, detecting and prosecuting the practice of crimes, considering that it must be possible to guarantee access to such data, in order to protect the public interest and achieve justice and public security and peace, but with the proviso that these values ”which cannot fail to be consistent with the fundamental rights of each citizen, in compliance with the constitutional principle of proportionality”.
Source: Observadora
