Will the text approved in Parliament this week be enough to prevent another lead in the Constitutional Court?
The bill approved by the PS and PSD is contrary to constitutional law of the European Union, as interpreted in the ongoing case law of the Court of Justice of the European Union (CJEU).
The project ignores, among other things, that the preventive and arbitrary retention of location data and traffic data is generally unacceptable.
The project ignores, among other things, that the preventive and arbitrary retention of location data and most traffic data is unacceptable; whereas the same retention of IP protocol addresses for a period of one year is excessive and cannot be used for the entire extensive catalog of serious crimes provided for in the Metadata Law; and that the tacit consent of the data subject cannot under any circumstances serve as a basis for the mass processing of personal data, including sensitive data.
Are you aware of solutions found in other EU countries? What do you think would be the solution in Portugal?
The case law of the Court of Justice only allows preventive retention of metadata in certain circumstances. This case law resulted from decisions assessing the solutions found in several Member States since the Court of Justice declared the invalidity of the directive that gave rise to the rules declared unconstitutional by the Constitutional Court in April 2022.
For example, despite considering that this constitutes a very serious interference with the right to privacy and data protection, the Court of Justice has recognized the adoption of national legislation which, in some circumstances, provides for the arbitrary retention of IP addresses. is justified because these metadata are often the only means to investigate very serious crimes committed on the Internet.
This is the paradigmatic case of the acquisition, distribution, transmission or making available online of child pornography. It seems that this is practiced with impunity in our country today.
Are CJEU rulings on the metadata regime always binding?
Yes, which means that this bill will hardly survive a re-examination by the Constitutional Court, which has integrated the European standard, as defined by the Court of Luxembourg, into the interpretation of the relevant provisions of the Portuguese Constitution.
Where is the power of the Member State as a constitutional state?
The protection of fundamental rights is one of the cornerstones of any Union or rule of law. Legislative instruments that allow permanent surveillance of the population are not permissible. Anyone who wants that will have to leave the European Union.
How do you respond to the statement of the director of the PJ, Luís Neves, who called it a “civilization backwards” to prevent authorities from accessing this metadata for the investigation of serious crimes provided for by law?
The widespread and arbitrary preemptive retention of metadata is a common practice in police and autocratic states such as China or Russia. Its inauguration in the European Union was the result of a security drive that I hope will never be repeated.
The widespread and arbitrary preemptive retention of metadata is a common practice in police and autocratic states such as China or Russia. Its inauguration in the European Union was the result of a security drive that I hope will never be repeated.
There were several leaders and former judicial leaders who predicted some kind of collapse in criminal investigations. Is this happening?
I assume not. It would be very bizarre if that happened. In 2010, Germany stopped implementing European legislation mandating preventive retention of metadata. There has been, as far as I know, no significant impact on the criminal investigation.
Source: DN
