THE CONSTITUTIONALITY OF TELEMATIC BREAK OF CONFIDENTIALITY ORDERS, OF AN UNIDENTIFIED SET OF PERSONS, BY GEOLOCATION, IN LIGHT OF RIGHTS TO PRIVACY OF INTIMACY

• DOI: 10.22533/at.ed.2162182213091

• Palavras-chave: Digital Law; Personal Data Protection; Geolocation; Telematic Data; Interception; Breach of Secrecy; Fundamental Rights; Public Law; Right to Privacy; Intimacy; Decisions; Marco Civil da Internet; Fishing Expeditions

• Keywords: Digital Law; Personal Data Protection; Geolocation; Telematic Data; Interception; Breach of Secrecy; Fundamental Rights; Public Law; Right to Privacy; Intimacy; Decisions; Marco Civil da Internet; Fishing Expeditions

• Abstract:

  The constitutionality of generic court orders to break the secrecy of telematics data of an unidentified group of people by geolocation has been the target of great discussions in legal society. The generic order to process personal data and remove the right to privacy and data secrecy of an unknown number of people does not fulfill any requirement inherent to the principle of proportionality, as a parameter to assess the validity of the restriction of fundamental rights.

  The intention of breaking telematics secrecy without identifying specific targets, based on the generic scanning of people's geolocation, contrary to the existing normative guidelines, is manifestly unconstitutional and illegal. It deviates from the logic underlying Brazilian criminal procedural law and the entire democratic rule of law when it determines that evidence should be produced about a countless number of people, only to later determine on whom suspicion rests. This is an exposition of the unconstitutionality and illegality of decisions, with an analysis of the position of the Federal Supreme Court.