The Federation of the Associations of Information Technology Companies (“ASSESPRO NACIONAL”) filed a declaratory motion of constitutionality (Adcon No. 51) of Decree No. 3.810/2011. This Federal Decree enacted the Mutual Legal Assistance Treaty in Criminal Procedures between Brazil and the United States of America.¹

Technology companies claim that the Brazilian judicial authorities are not applying this Decree, as they request evidence, data, and information directly from the technology companies that have their data are stored in data centers located in the USA, without going through the procedure of issuing letters of request from the Court. The Decree states that the Court must issue a letter of request to solicit documents, evidence, and information located in foreign countries.

This failure of the Brazilian Courts to apply Decree No. 3,810/2011 creates serious problems for technology companies that work in the social network segment, as well as for the providers of internet applications.

And, if these companies do not comply with the court orders requesting documents/data, they may be penalized with heavy fines. There is also a risk of criminal investigation/prosecution related to the crime of disobedience, including the risk of arresting the manager of the company.

Private Communications: The Constitutional Protection of the Fundamental Right to Privacy of Communications

The Brazilian Constitution holds solid guarantees related to private communications. It is worth noting the guarantee of data secrecy, except in the case of breach of secrecy of communication, for the purposes of criminal investigation or prosecution.²So the lower laws (the Brazilian Civil Procedure Code, the Criminal Procedure Code, and the Internet Regulatory Framework) must be interpreted under the perspective of maximizing the effects of this constitutional guarantee with regard to obtaining evidence, information, and data from internet application companies.

The Brazilian Civil Procedure Code and the Brazilian Criminal Procedure Code: International Cooperation in Jurisdictional Exercise

The Brazilian Civil Procedure Code provides that a letter of request will be issued to the foreign court so that it may perform the international legal assistance act related to the case in progress before the Brazilian Courts (Article 237, item II.

The Brazilian Criminal Procedure Code, in its turn, states that the provisions of that statute apply to the ratification of foreign criminal sentences and the issuance and compliance with letters of request for summons, inquiries, and other procedures required for criminal prosecution” (Article 780 Article 783 of the Brazilian Criminal Procedure Code also provides that the letters of request will be sent by the respective judge to the Head of the Department of Justice, to request its enforcement, through diplomatic channels, by the proper foreign authorities.

So Decree 3810/2001 that deals with the Mutual Legal Assistance Treaty between Brazil and the USA is set within this statutory context.

Decree No. 3810/2011: Status of Law

The federal decree under examination is formally a law, hence its effectiveness on Brazilian judicial authorities. It is an act that incorporated the international treaty between Brazil and the USA into the Brazilian legal system. The simplified procedure for requesting data, information, and documents provides for the issuance of letters of request by the Courts, to be enforced with the cooperation of diplomatic agents.³

Internet Application Providers: The Internet Regulatory Framework

According to the Internet Regulatory Framework (Article 10, Paragraph 1) and the decree that regulates it, registration data and access records must be submitted by internet application providers upon proper request by the Brazilian authorities, regardless of any international treaties on the matter. However, regarding the content of private communications, there is no legal authorization for direct request thereof by the Brazilian Courts. It is worth highlighting that internet application providers have a different legal regime than internet connection providers, as per distinction in the Internet Regulatory Framework.

Internet Application Providers’ Business Model

Internet application companies, such as Google, Facebook, WhatsApp, Twitter, etc, which store and collect private communications exchanged by Brazilians, do not usually have data centers in Brazilian territory. They merely use the local infrastructure of the telecommunications network. However, the contents of the private communications are stored in data centers abroad.

The location of the data center is part of the business model of internet application providers, due to economic and strategic reasons, as well as data security and network architecture.

So any Brazilian law that tries to oblige these companies to build data centers in Brazil in order to offer such internet applications may have its constitutionality question, especially given the constitutional guarantee of free enterprise.

In this regard, we must point out how essential the protection of privacy and of the secrecy of private communications is, as they are integral to the business models of technology companies that provide internet applications. The assurance that personal data and the content of private communications will be kept safe and secure is essential to the business models of these technology companies. Their market value depends on proper protection of the private communications of their users and the expectation and trust placed by the user on the protection of the secrecy of such private communications.

Brazilian Sovereignty: Self-delimitation due to Mutual Legal Assistance Treaty

In the present case, as Brazil has signed the Treaty for Mutual Legal Assistance in Criminal Cases with the USA, that contemplates the issuance of letters of request by the Judiciary, then Brazil must comply with this international treaty, in the form of Decree No. 3810/2001, while it is in effect in the Brazilian legal system.

However, the Brazilian Courts (including the Superior Court of Justice) are denying the application of Decree No. 3810/2001, under the argument of the principle of national sovereignty.⁴ If the effectiveness of the Decree is not certain, then the best legal solution is to have its unconstitutionality declared by the Courts.

It seems that the argument of violation of the sovereignty principle is not enough to justify the failure to apply the federal decree and impose undue burdens to foreign technology companies with headquarters abroad. Much to the contrary, this type of interpretation of the law results in an offense to the sovereignty of the foreign country that is responsible for requesting evidence, data, and information from the companies located in their territory.

Legal Security and the Due Process of Law: the Procedure for Letters of Request for the Purpose of Gathering Evidence in a Police Investigation or Criminal Prosecution.

The direct request by Brazilian Courts of evidence/information for the purposes of criminal investigation or prosecution from internet application providers, without the issuance of a formal letter of request by the Court, violates the principles of the due process of law and of legal security.

The reason is that the Brazilian law defines how cooperation between the Brazilian and foreign jurisdictions should work, in its Decree No. 3810/2001, so the Brazilian authorities are bound to the enforcement of the Brazilian law.

Admissibility of Evidence

According to the Brazilian Constitution, evidence must be properly produced for it to be admissible, for the purposes of criminal investigation. The Constitution expressly states the evidence obtained by unlawful means are not admissible (Article 5, item LVI.

Thus, if Decree No. 3810/2001 is not applied when evidence is gathered from foreign technology companies with headquarters abroad, there is the risk of annulment of that evidence.

Conclusion

In sum, the declaratory motion of the constitutionality pf Decree No. 3810/2001 that approved the International Legal Assistance Treaty between Brazil and the USA, which is now in course before the Brazilian Supreme Court, illustrates the complexity of issues related to the exercise of jurisdiction in Brazil, as well as the enforcement of Brazilian law with regard to the internet and internet application providers with headquarters abroad.

We highlight the international cooperation between the Brazilian and North American courts, for the enforcement of Brazilian laws in the compliance of court orders related to police investigation or criminal prosecutions (gathering of data/evidence), related to internet application users of foreign technology companies located abroad.

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1 The Mutual Legal Assistance Treaty between Brazil and the USA, under the terms of Decree No. 3810/2100 comprehends the following measures: depositions or witness statements; provision of documents, records, and assets; location or identification of people or assets; delivery of documents; transfer of people in custody to give testimony; executing search and seizure warrants; assistance related to the freezing and forfeiture of assets; restitution, fines, etc.

2 Brazilian Constitution, Article 5, item XII.

3 See: Ericson M. Scorsim. Communications Law. Telecommunications, Internet, Broadcast Media, and Pay TV. Author’s Edition. Curitiba: Amazon, 2016.

4 Cases that the Superior Court of Justice failed to apply Decree No. 3810/2001, RMS 44892/SP, 2010, reported by Justice Ribeiro Dantas, tried on April 5, 2016; RMS 466685/MG, reported by Justice Leopoldo de Arruda Raposo, published on April 6, 2015.

Artigo publicado no Portal Jurídico Migalhas Internacional em 11/01/2018.
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