(I)LEGALIDADE DO ACESSO POR POLICIAIS A DADOS TELEFÔNICOS DE CELULAR APREENDIDO EM DECORRÊNCIA DE CRIME SEM PRÉVIA AUTORIZAÇÃO JUDICIAL: interpretação do artigo 5º, inciso XII, da CRFB/88 a partir do caso concreto do ARE 1.042.075/RJ

Abstract

The secrecy of telephone data and communications is guaranteed under Article 5, item XII, of the Constitution of the Federative Republic of Brazil. However, by majority doctrine, the confidentiality specified at the end of this item, which binds the disclosure of information to a judicial order and compliance with legal obligations, pertains only to telephone communications. Even though this final part does not cover confidentiality breaches of telephone data, no constitutional right is absolute, meaning that data might still be looked into. In order for this to happen, would prior judicial authorization also be required? Such issue was analysed in this monograph, based on the concrete case ARE 1.042.075/RJ – which originated Theme 977 within the Brazilian Federal Supreme Court (STF) – and in light of the right to intimacy, privacy, and protection of personal data (Article 5, items X and LXXIX, of the 1988 Constitution of the Federative Republic of Brazil), the sub-constitutional legislation on the matter, and verdicts of the Superior Court of Justice and Federal Supreme Court, as well as the content of foreign Constitutions, laws, and jurisprudence. Ultimately, presenting a written thesis suggestion for Theme 977, it has been concluded that access to telephone data would be illegal even when granted to police officers and to elucidate crimes if carried out without prior judicial authorization, as it is essential for the court to analyse the unique characteristics of each case in order to, based on proportionality and necessity, allow the investigation of required data without excessively violating the right to intimacy and privacy, thus guaranteeing the protection of personal information, unless the case indicates plausible urgency or upon authorization from the owner. Consequently, all the evidence produced by such illegal access and that arising by derivation – except in the event of independent sources or inevitable discoveries – is illicit and should be deemed inadmissible.