This Monday, the President of the Republic sent to the Constitutional Court the parliamentary decree regulating access to metadata of electronic communications for criminal investigation purposes, as he had promised.
This decision of the Head of State, Marcelo Rebelo de Sousa, was announced through a note on the official website of the Presidency of the Republic on the Internet.
“For reasons of legal certainty, the President of the Republic has decided to subject the Decree of the General Assembly of the Republic, which regulates access to metadata relating to electronic communications for the purpose of criminal investigations, to a preventive constitutionality inspection, in accordance with with the attached request, addressed to the Constitutional Court”reads the note.
This decree was approved by the Assembly of the Republic in a final global vote on October 13, with votes in favor from PS, PSD and Chega and votes against from IL, PCP, BE and Livre, and went to the Belém Palace on November 2 . . , after adoption of the final wording.
In a ruling dated April 19, 2022, the Constitutional Court declared unconstitutional the rules of the so-called metadata law under which providers of telephone and internet services were required to retain data relating to customer communications – including origin, destination, date and time, type of equipment and location – for a period of one year, for possible use in criminal investigations.
Following this decision, Marcelo Rebelo de Sousa promised to initiate a preventive inspection of the new decree on this issue, as there “cannot be any doubt” about its constitutionality.
In this Monday’s letter to the Constitutional Court, the President of the Republic states this “the legislature has now, and in its own words, declared that the regime in question will conform to the conclusions of the Constitutional Court’s ruling” and argues that “It is therefore important to determine whether the court considers that the Assembly of the Republic was successful in its deliberation”.
According to the head of state “despite the fact that the period for retaining traffic data has been shortened, it can be interpreted that its indiscriminate collection may remain permitted, which may not be in accordance with what the court decided in the above-mentioned ruling”.
“The court then stated that the indiscriminate collection of this data would in itself conflict with the principle of proportionality, which would make the assessment of other elements, including the time limit, less relevant.”he makes it clear.
According to Marcelo Rebelo de Sousa, “similarly, it is important to verify whether the notification to the data subject, as provided for in the new wording of Article 9, complies with the requirements set out in the above-mentioned judgment of the Constitutional Court, in particular with regard to the principle of proportionality”.
The President of the Republic, “In view of the above and given the importance of ensuring legal certainty in such a delicate and controversial issue”for preventive inspection of constitutionality submitted to the rules contained in Article 2, in the parts in which it modifies Article 4, and in combination with 6 and 9 of Law No. 32/2008 of July 17, the so-called Metadata Law .
Metadata is contextual data that allows us to determine, for example, who called, from where, with which recipient and for how long, without revealing the content of the communication.
The so-called metadata law of 2008 transposed a 2006 European directive into the national legal system, which the Court of Justice of the European Union declared invalid in 2014. The National Protection Commission of Data relies on the primacy of European law and the Constitution. CNPD) decided in 2017 to “disapply that law in situations submitted to it for consideration”.
The Constitutional Court ruling of April 2022 was drafted following a request to the Ombudsman, Maria Lúcia Amaral, to declare Articles 4, 6 and 9 of this law unconstitutional.
The court found that the rules in question conflict with principles enshrined in the Constitution, such as the right to preserve private and family life and the prohibition of access to personal data of third parties, except in exceptional cases. “the legislator has not prescribed that data storage must take place on the territory of the European Union”.
The decision, sent for preventive inspection on Monday, stipulates that traffic and location data will be retained “for a period of three months from the date of closure of the communication, this period being deemed to be extended to six months unless the holder has objected”.
These terms are possible “be extended for a period of three months up to a maximum of one year, after judicial authorization at the request of the Attorney General of the Republic”when it comes to investigating serious crimes.
The final text approved by Parliament stipulates that data must be retained “in Portugal or in the territory of another Member State of the European Union” and that holders should generally be informed “within a maximum period of 10 days” when the data in question is accessed.
Source: DN
