In Germany, the use by the police of software that uses so-called predictive algorithms – artificial intelligence programs that can define a person as a suspect and analyze all available information, even before committing a crime. In the state of Hesse, these programs have been used since 2017 and now Hamburg was preparing to do the same. An intervention by the German Constitutional Court declared it illegal.
This Thursday, at the Lisbon Academy of Sciences, the president of the Constitutional Court (TC), João Pedro Caupers, used this story to say that there is “a looming future already knocking at our door”. And to underline the “relevant role in solving this serious problem” that the constitutional jurisdictions and the Court of Justice of the European Union can have.
The advisory judge spoke at the opening session of the international conference “Constitutionalism in the 21st century” organized by the TC to celebrate its 40th anniversary. And he referred very explicitly to the Metadata Act, which regulates the use by criminal investigations of data in communications related to geolocation, origin, destination, time and duration (the law was passed in April 2022 and is now under review by parliament). “The accumulation of personal data on citizens, allegedly based on their defenses, has dramatized respective access, a situation reflected in the controversy raging in Europe and its institutions over so-called metadata.” Now the problem is that “there is no freedom to resist” when “security impulses” are accentuated that ensure the “normalization of the invasion of citizens’ privacy”, causing the “restrictions on freedoms that until recently were considered unacceptable become “inevitable”.
Caupers placed these warnings in the context of “many changes” he says are taking place in constitutional justice. According to him, the “constitutional jurisdictions” will have to “reinvent themselves” because of these new issues of “balance” between “freedom and security”. But the question remains, “Will they know how to do it? Can they do it? Will they want to do it?”
The chairman of the TC – now four days away from ending his mandate – also believed that the “amplified exposure” of Portuguese judicial cases sometimes “hides attempts to pressure the courts to decide in a certain direction” . According to him, “the most relevant cases pending before the Portuguese courts, including the Constitutional Court, are commented on profusely, in the media and on social networks, even before they are known”.
However, these comments are made “by those who, with little or no knowledge of the issues involved”, nevertheless express “hasty and unfounded judgements”. Since “it does not seem possible to reverse this situation”, only “it will be necessary to think about the best way to deal with it, without affecting the reserve of judicial activity and the tranquility essential for judicial consideration”.
New law under negotiation in AR
The parliamentary working group on metadata intends to finalize a final text in two weeks, with the PS, PSD, Chega and PCP prepared to draw up a common proposal based on the various diplomas that were awarded.
At a meeting this Thursday, the group’s delegates agreed to schedule the preliminary vote for March 17, with until March 15 to make “proposals for amendment and/or merging of existing proposals.” So far, PSD, Chega and PCP have issued diplomas to amend the so-called metadata law, which also adds a government bill, after the Constitutional Court declared some of its rules unconstitutional in April 2022.
PS, PSD, Chega and PCP expressed their willingness to develop a common text based on the different projects submitted. The proposal came from Socialist deputy Alexandra Leitão, who expressed “the interest and availability of the PS group to find a common text, which can be approved in this working group and then follow the normal procedure”. “I think the auditions we’ve done have all been very helpful to us in understanding which way to go. Now that we’ve come here and highlighted all the complexities inherent in this issue, I think we’d be in a position to may be to write a text that is more or less consensual”, he said. .
PSD deputy Mónica Quintela agreed that the “most sensible solution” would be to find a common text, which “could consolidate the situations in order to protect as much as possible the fundamental interest of the criminal investigation”.
Source: DN
