The Constitutional Court (TC) states that the retention of metadata of communications, regardless of the period, should be limited and not generalized, warning that the solution found by Parliament continues to include citizens without suspicion of criminal activity.
This Monday, the TC declared unconstitutional a rule in that decree that provides for the widespread retention of traffic and location data “for a period of three months from the date of completion of the communication, extending this period to six months, unless the holder has objected”.
In the statement underlying the decision, the TC emphasizes that the legislators “have limited themselves to limiting the retention period for these categories of data” which was provided for in the metadata law, and which had already been declared unconstitutional by the TC in April 2022.
According to the TC judges, taking into account the fact that the April 2022 ruling had already indicated that the metadata law exceeded “the limits of proportionality with regard to the subjective scope” and that the new decree does not change that scope, there was “no way not to uphold the ruling of unconstitutionality at the time.”
Conservation ‘remains general and undifferentiated, and not selective, as it does not address theto people who have a relationship with the objectives of criminal justice action, and prefer to reach (or rather: continue to reach) those who are not suspected of criminal activity,” it is stated.
“What is worth saying, as possible suspects of committing crimes,” the judges point out.
The TC therefore states that in the parliamentary decree “the test of the principle of proportionality – whether it concerns necessity or proportionality in the strict sense – has not been overcome by the legislator”.
“For this to happen, the limitation in time implemented is not sufficient, and it is inevitably necessary that a limitation on the subjective scope of the standards has been implemented,” it is emphasized.
The judges say they are aware that Portuguese law already takes into account the existence of a database, namely the database of telecommunications operators used for billing purposes, which also provides for the retention of traffic data for a period of six months.
However, the judges emphasize that this retention of data for billing purposes, in addition to the fact that the purpose is “totally different”, “is dependent on the consent of the data subject”.
In an allusion to the government’s original metadata bill – which specifically provided for access to operators’ databases for criminal investigative purposes – the judges state that holders only consent to the retention of their data “to the extent necessary and for the time necessary for the commercialization of electronic communications services”.
“Which, in short, implies that this discipline cannot be used for comparative purposes with the regime in question,” the TC emphasizes, despite the fact that it does not comment “on the constitutional feasibility of access by criminal investigative authorities to data held by operators kept in accordance with other legal requirements”.
Source: DN
