An opinion of the Superior Council of the Public Ministry (CSMP) considers that the Government diploma on metadata “is an important legislative initiative” and that “it deserves support”.
According to the opinion to which the Lusa agency had access this Thursday, the CSMP points out that, contrary to what happens with the bills presented by the PSD, Chega and PCP, the Government’s bill expressly opts for the repeal of law. [dos metadados]whose regulations were considered unconstitutional by the Constitutional Court (TC) on April 19.
This proposal assumes that the data previously collected by communications operators, in another location, may be used for criminal investigation purposes,” says the CSMP ruling, stressing that “without access to such data, many of the crimes committed online they cannot be investigated. ”.
The opinion analyzes, among other various aspects of the Government’s proposal, “the purpose of data processing” and the “transmission and destruction of data”.
Regarding the purpose of processing the data contained in the bill, the CSMP understands that the diploma only intends to regulate the use of certain data in Criminal Procedure, “saved for different reasons”, for which it considers this aspect to be positive, “for giving a legal basis to the regulation of a decades-old practice.”
One of the positive benefits of the creation of this regulatory framework is the express consecration (…) in the bill that data processed by communications operators can be accessed for criminal investigation purposes”, reads in The document.
However, in relation to the transmission of data, the opinion criticizes that the Government’s proposal relegates to a later ordinance “the technical conditions for the transmission of this type of data from the operators to the judicial authorities”.
“It seems that it will be a very inappropriate option, at a time when, due to the collapse of the previous system, there is an emergency to create an alternative model of access to data”, says the opinion, stressing that relegating the technical conditions for transmission of data also means postponing the entry into force of the Government’s legislative initiative to a later date.
As for the PSD, Chega and PCP bills, the opinion indicates that such initiatives chose to introduce “small changes” to the law. [dos metadados]considering that this option of making small changes “consists of the most appropriate legislative alternative.”
Emphasizing that the jurisprudence of the Court of Justice of the European Union and also of the Constitutional Court point to the need to “deeply” review the metadata law, the opinion warns that if these projects are approved, the law “will continue to have weaknesses”. and inconsistencies, which the legislative projects presented do not resolve”.
“All of them propose punctual and circumscribed changes that seek to respond to the vacuum created by constitutional jurisprudencemany other questions remain unanswered”, he points out.
The CSMP also criticizes that “none of the bills clarifies the reason or the criteria” to choose a certain period (90 days, six months and another one year) as definition of retained data retention.
Previously, the Bar Association issued an opinion in which it placed reservations on the Government’s bill, considering that crimes whose investigation guarantees access to data should be listed, instead of referring to crimes provided for in the Code of Criminal Procedure and regretted. omissions in the text. in terms of the time and manner in which such data must be destroyed and in the definition of security criteria for their transmission.
For its part, the National Data Protection Commission considered that some of the solutions proposed by the Government to regulate access to metadata related to electronic communications for criminal investigation purposes violate the guarantees of the fundamental rights of citizens.
However, the Superior Council of the Judiciary declined to rule on the proposals to reform the metadata law to overcome unconstitutionality, alleging that it is not “curial” to do so in a matter that will probably be decided by the TC.
The TC declared unconstitutional rules of the so-called metadata law that determine that telephone and internet service providers must keep data related to customer communications —including origin, destination, date and time, type of equipment and location— for within one year, for eventual use in the criminal investigation.
Source: Observadora
