(IN)VIABILIDADE DE UMA LEI GERAL DE PROTEÇÃO DE DADOS NO ÂMBITO DA PERSECUÇÃO PENAL E DA SEGURANÇA PÚBLICA NO BRASIL

Abstract

The present work aims to observe Article 4º, §1º of the General Data Protection Law (LGPD), which provides the need for specific legislation to govern the processing of personal data, in case of use for public security and criminal prosecution. However, there is still a legislative vacancy, so that the issue is not yet regulated unanimously. Therefore, it was essential to verify the path of data protection in Brazil and the limits of this sparse regulation. Also, the path drawn by the country is compared with the European Union, a block that inspired this nation to write the LGPD, as a consequence of the General Data Protection Regulation (GDPR), which established Directive 680/2016 of the European Council about data protection in public safety and criminal prosecution. It is important to highlight the European history of decisions in the European Court of Human Rights that already showed primary interest in safeguarding data protection in the criminal field. In Brazil, the Chamber of Deputies saw the need to propose a draft on the subject, inspired by the aforementioned directive. A posteriori, a Bill was also drafted in the same direction, PL 1515/2022. The content of both texts was then analysed, in the light of the dichotomy between public and private interests, public security, and citizen privacy, respectively. It was concluded, therefore, that the legislative vacuum is not healthy for Brazil, amid an incipient culture in data processing and the risks of outrages to fundamental rights. To this end, it is necessary to seek the most balanced and sound points of each legislative text, in order to enter into force balanced legislation.